Ms 


A 

A 

0 
0 
0 

5 
6 
2 

3 

7 
3 

1 


:  33 
;  m 

■  2 

■  O 


Savings  and  Loan  Society,  Re- 
spondent, V.  Alexander  Austin, 
Appellant,  and  Bartlett  Doe, 
et  al..  Respondents,  v.  Alex- 
ander Austin,  Appellant.  Oral 
Argument . 

By 

J.  p.  Hoge 


1*1'*' 


c 


IN  THE  SUPREME  COURT. 


OF   THK 


STATE    OF    (JALIFORjSriA. 


){  SAVINGS     AND     -LOAN     SOCIETY,    KespoxXdent,   r. 

ALEXANDER    AUSTIN,   Appellant, 


AND 


BAKTLETT  DOE,  ei  aL,  Respondents,  v.  ALEXANDER 

AUSTIN,  Appellant. 


;) 
0 

!) 

0 
,0 
0 

0 
0 
0 
0 
0 
0 
c 


ORAL   ARGUMENT   OF  J.   P.   HOGE, 

or  roU^'SKL    FOR    APPELLAXT, 

In  support  of  the  Coiistitulioimlity  of  the  Revciiiip  law  of  (]iiliforniii. 


[Transcribed  from  the  notes  of  J.  A.  Waymire,  Phonographic  Reporter  of  the  Supreme 
Court,  by  AVhitton  &  Lyons,  Shorthand  Reporters,  34  Montgomery  Block,  S.  F.] 


SACEAMENTO: 

T.    A.    SPRINGER,   STATE    PRINTER. 

1873. 


^^^< 


-,.^kj:^s 


INDEX 


Page. 

Questions  not  presented  by  the  record 4 

Motives  of -the  Board  not  subject  to  review 6 

Double  taxation ^,  31 

Questions  settled 10 

Taxation  of  credits  in  California 12 

Taxation  of  credits  in  other  States 15 

Delegation  of  legislative  power 16,  20,  53 

Constitutionality  of  the  revenue  laws 18 

Illustrations — conclusion 38 

Illegal  tax  to  be  refunded 41 

Duty  of  citizens  to  pay  taxes 43 

The  Act  authorizing  State  Capitol  Bonds 46 

Constitutionality  of  the  State  Board  of  Equalization 48 

For  extracts  from  first  argument,  sec  page  41,  et  scq. 


No.    3,729. 


IN  THE  SUPREME  COURT 


OF   THE 


STATE    OF    CALIFOE]N'IA. 


SAVmOS     AND     LOAX     SOCIETY,    Respondent,   v. 
ALEXAI^DER    AUSTm,   Appellant, 


AND 


BARTLETT  DOE,  d  al,  Respondents,  v.  ALEXANDER 


AUSTIN,  Appellant. 


ORAL   ARGUMENT  OF  J.  P.  HOGE, 

OF  COUNSEL   FOR   APPELLAXT, 

111  support  of  the  Coustitutioiiality  of  the  Revenue  Law  of  California. 


[Transcribed  from  the  notes  of  J.  A.  'NVaymirk,  Phonographic  Reporter  of  the  Supreme 
Court,  by  Whitton  &  Lyons,  Shorthand  lleporters,  34  Montgomery  Block,  S.  F.] 


SACKAMENTO: 

T.   A.   SPRINGER,   STATE  PRINTER. 
1873. 


4 


l<gnr^^ 


IN    THK 


\\\^u\\\t  ^mtrt  of  tlj^  ^^Ut  0f  €ali}0t^niti. 


SAVmGS  AND  LOAN  SOCIETY, 

V. 

AUSTIN, 

''''''  ^  On  Reliearinn;. 

BARTLETT  DOE,  et  al.,  '  ^ 

V. 

SAME. 


to 


■at. 
az 


ORAL  ARGUMENT  OF  J.  P.  HOGE,  ESQ., 


ac:  OF   COUNSEL    FOR    APPELLANT. 


May  it  Please  Your  Honors:  It  has  now  become  my  duty 
to  close  this  argument  on  the  part  of  the  State.  In  the  per- 
formance of  that  duty  I  shall  endeavor  to  be  as  brief  as  I  pos- 
sibly can,  and  the  rather,  because  I  have  heretofore,  I  believe, 
discussed  in  the  former  argument  of  this  cause  almost  all,  if 
not  entirely  all,  the  questions  that  have  been  discussed  in  the 
present  argument.  The  duty  is  irksome  to  me,  and  very  likely 
will  be  to  the  Court,  as  I  shall  be  compelled,  more  or  less,  to 
travel  over  the  same  ground  once  before  considered  hj  mj^self 
and  so  much  discussed  by  other  counsel.  I  shall  therefore 
pass  over  it  as  rapidly  as  I  can. 

3-1  %^u\^:> 


[      4      ] 

QUESTIONS    NOT   TRESENTED  BY   THE   RECORD. 

In  the  present  argument  the  discussion  has  taken  a  very 
wide  range,  and  very  many  interesting  and  perhaps  difficult 
questions  of  political  economy,  of  proper  legislation,  of  the 
policy  of  particular  legislative  provisions,  have  been  very  inge- 
niously and  very  ably  discussed.  An  indifferent  observer, 
standing  in  this  Court  to  listen  to  the  argument,  would  have 
supposed  that  this  body  had  resolved  itself  into  a  legislative 
assembly,  for  the  purpose  of  considering  the  policy  which 
should  govern  the  State,  rather  than  a  Court  of  law,  supposed 
to  be  engaged  only  in  the  duty  of  inquiring  whether  particular 
jDrovisions  of  law  are  in  conflict  with  constitutional  limitations 
which  control  not  only  the  legislative  body  but  all  the  branches 
of  the  government. 

In  taking  this  wide  range,  many  questions  have  been  pre- 
sented and  discussed  which  I  think  do  not  arise  upon  this  rec- 
ord, to  which  alone,  I  apprehend,  we  are  to  be  confined.  I 
propose,  so  far  as  I  can  in  the  part  I  shall  take  in  this  discus- 
sion, to  go  back  to  the  record  and  take  a  new  departure.  I  am 
not  willing,  even  if  I  were  competent  to  the  task,  to  abandon 
the  record  and  travel  into  those  difficult,  abstruse,  and  abstract 
questions  bearing  upon  the  general  subject  of  taxation,  ujjon  the 
general  duties  of  government  as  affected  by  principles  of  political 
economy,  of  governmental  policy,  or  of  legislative  propriety. 
I  had  supposed  that  those  were  questions  which  are  not  ad- 
dressed to  the  judicial  cognizance;  that  this  was  not  the  forum 
for  such  discussions;  that  they  belong  to  legislative  and  not  to 
judicial  bodies.  In  a  Court  of  law  we  can  inquire  only  whether 
the  particular  legislation  complained  of  has  exceeded  the  con- 
stitutional powers  of  the  legislative  body,  and  whether  the 
record  presents  the  question  in  such  form  as  to  call  into  action 
the  judicial  power;  all  else  is  outside  of  the  record,  and,  in  this 
cause,  I  shall  treat  such  matters  as  entirely  foreign  to  the  dis- 
cussion. 

This  is  simj)l3^  a  proceeding  in  which  officers  of  the  law  are 
sought  to  be  enjoined,  at  the  suit  of  a  citizen  of  the  State,  from 
the  performance  of  public  duties  which  have  been  imposed 
ujDon  them  by  the  laws  of  the  State.     Does  the  record  j^i'esent 


[      5      ] 

a  case  which  calls  into  operation  the  judicial  powers  of  this 
tribunal,  either  equitable  or  legal?  This  is  the  question,  and 
the  only  question,  I  take  it,  that  is  open  to  discussion. 

Singularly  enough,  the  complaint  (though,  perhaps,  it  may  be 
good  pleading,  notwithstanding,)  does  not  contain  a  single  aver- 
ment alleging  that  the  law  establishing  the  State  Board  of 
Equalization  is  unconstitutional  and  void  for  any  reason  what- 
evei*.  The  complaint  only  goes  against  the  action  of  the  State 
Board,  and  the  manner  in  which  they  have  2)erformed  the 
duties  imposed  upon  them,  alleging  that  they  have  exceeded 
the  powers  vested  in  them  by  law.  But  it  is  argued  that  the 
law  which  created  the  State  Board  of  Equalizatfon  is  uncon- 
stitutional and  void,  and  various  reasons  are  assigned  in  support 
of  that  proposition.  To  these  questions,  in  their  proper  order, 
I  shall  direct  my  attention. 

Nor  does  this  complaint  (for  I  propose  to  get  rid  of  all  the 
questions,  if  possible,  that  are  not  before  the  Court)  present 
the  question  of  double  taxation,  which  of  all  the  questions 
presented  has  been  most  elaborately  discussed.  I  shall  not 
take  time  to  examine  the  pleadings,  and  refer  you  to  the  pages 
and  sections  of  the  complaint  and  of  the  answer,  to  satisfy  you 
that  no  such  question  is  presented  on  this  record;  that  the  ques- 
tion of  double  taxation  does  not  arise  here  at  all;  that  there  is 
no  imaginable  averment  in  the  complaint  which  could  j)resent 
it;  that  there  is  no  proof  in  the  record  which  raises  the  ques- 
tion at  all,  and  that  the  whole  discussion  on  the  subject  is  en- 
tirely abstract  and  outside  the  record,  intended  to  procure  an 
advisory  opinion  from  this  Court  which  should  affect  the  future 
legislation  of  the  State.  Nor  does  the  complaint  in  the  case  of 
Barilett  Doe  v.  Austin  pretend  to  raise  the  question  in  any  shape 
or  form;  because  there  is  not  even  an  allegation  of  any  case  of 
double  taxation  in  the  complaint,  nor  any  proof  whatever  on 
the  subject.  The  case  in  reality  comes  here  precisely  in  the 
position  of  the  case  of  The  Ireople  v.  McCreery.  It  is  the  com- 
plaint of  the  mortgagee  holding  that  he  is  not  to  be  taxed  on 
the  money  loaned,  for  which  he  has  taken  security,  and  that  if 
he  is,  it  is  double  taxation.  Now,  that  is  the  precise  condition 
of  the  question  on  the  record. 


L      6      ] 

MOTIVES    OF   THE   BOARD    NOT    SUBJECT   TO    REVIEW. 

Now,  there  is  another  matter  that  I  want  to  say  a  few  words 
upon  and  dispose  of,  which  has  been  talked  of  a  great  deal,  and 
upon  which  a  great  many  calculations  and  figures  have  been 
produced  here  that  I  do  not  think  this  Court  has  anything 
whatever  to  do  with.  I  mean  the  reasons,  the  arguments,  the 
inducements,  the  considerations  which  influenced  and  governed 
the  minds  of  the  State  Board  of  Equalization  when  engaged  in 
the  performance  of  their  duties. 

In  the  absence  of  any  charge,  or  pretense  of  charge,  of  any 
fraudulent  ahuse  of  authority,  I  take  it  that  it  does  not  belong 
to  this  Court  to  investigate  such  questions.     The  law  gives  the 
Board  the  power  to  do  certain  things.   The  motive  which  governs 
the  exercise  of  the  power  belongs  to  that  body,  and  to  that  body 
alone.     The  law  gives  no  appeal   based  upon  the  reasons  which 
govern  them;    their  decision   is  final  upon  all  tribunals — pro- 
vided they  do  not  do  more  than  the  law  authorizes  them  to  do. 
All  this  talk  about  adding  ten  per  cent  for  costs  of  collection,  ten 
per  cent  for  delinquencies,  the  series  of  figures  gone  into  to  show 
that  this  Board  have  undertaken  to  raise  many  hundreds  of 
thousands  of  dollars  more  than  any  provision  of  law  authorized, 
is  not  true  in  fact,  and  no  such  state  of  the  case  exists  upon  this 
record.     The  State  Board,  as  appears  upon  the  face  of  the  rec- 
ord, never  undertook  to  raise  a  dollar  more  than  the  actual 
directions  of  the  Code  and  of  the  statute  of  eighteen  hundred 
and  seventy-two  required  them  to  raise.     They  fixed  their  per- 
centage of  fifty  cents  on  the  hundred  dollars  directly  for  the 
object  of  raising  two  million  three  hundred  and  seventy-two 
thousand  dollars,  which  they  were  directed  by  the  Acts  of  the 
Legislature  to  raise  and  put  into  the  State  Treasury.     They 
attempted  no  more;    and  the  whole  talk  to  the  contrary  grows 
out  of  the  fact  that  in  examining  two  members  of  the  Board, 
when  the  counsel  on  the  other  side  were  prepai'ing  in  open  Court 
to  resist  the  motion  to  dissolve  the  injunction,  they  questioned 
and  examined  these  gentlemen  as  to  what  the}^  thought,  what 
they  did,  the  reasons  for  their  action,  what  this  member  and  that 
member  thought.    It  all  comes  down  to  the  proposition  that  they 
did  undertake  to  raise  two  million  three  hundred  and  seventy- 


C    7    ] 

two  thousand  dollars,  although  some  of  the  members  thought 
they  had  a  right  to  raise  more,  while  others  thought  they  had 
not.  The  whole  matter  was  discussed,  and  the  Board  finally 
settled  down  to  the  conclusion  to  raise  the  amount  directed  to 
be  raised — two  million  three  hundred  and  seventy-two  thou- 
sand dollars — and  to  fix  a  percentage  which,  uj)on  examina- 
tion of  all  the  data  the  law  placed  in  their  hands,  and  aided  by 
the  former  experience  of  the  State,  would  suffice  to  raise  the 
two  million  three  hundred  and  seventy-two  thousand  dollars 
which  the  Legislature  required  to  be  raised  and  put  into  the 
State  Treasury.  That  is  all  they  did;  and  the  record,  if  your 
honors  ever  come  to  read  it,  will  show  that  they  did  nothing 
else,  and  attempted  nothing  else.  And  all  this  talk  about  the 
Act  of  eighteen  hundred  and  fifty-seven  and  the  Act  of  eighteen 
hundred  and  sixty,  and  the  percentage  for  costs  of  collection, 
is  entirely  out  of  the  case. 

The  testimony  of  Catlin  and  Green  will  show  that  they 
never  undertook  to  add  any  percentage  whatever  for  collec- 
tion or  for  delinquencies.  The  law  directed  them  to  raise  a 
given  amount  of  money  and  to  place  it  net  in  the  Treasury 
of  the  State.  It  said  to  them:  "Make  your  calculation  to  pro- 
duce that  result,  for  you  will  probably  have  delinquencies  in 
collection."  The  law  governing  the  State  Board  of  Equaliza- 
tion requires  all  the  necessary  data  from  every  county  in  the 
State,  from  every  Assessor  in  the  State,  to  be  placed  before 
the  Board,  the  description  of  the  property,  and  the  valuations 
fixed  upon  it.  It  requires  that  everything  connected  with  the 
subject  of  assessment  should  be  placed  before  the  Board. 
They  are  to  take  up  and  examine  such  data  equalizing  the 
assessments,  so  as  to  secure  equality  and  uniformity  of  taxation 
throughout  the  State.  Then  they  are  directed  to  raise  and  jDut 
into  the  Treasury  a  given  amount  of  money.  The  Legislature 
says  to  them:  "In  making  that  calculation,  in  ascertaining 
what  rate  will  produce  that  given  amount,  you  must  fix  the 
rate  so  that  the  amount  specified  will  result  to  the  Treasury; 
and  in  getting  at  that  conclusion,  you  must  take  into  your  cal- 
culations the  pi'obable  delinquencies,  and  the  charges  for  the 
collection."  That  is  the  meaning  of  the  term  "delinquencies." 
The   costs  of  collection   never   go   into   the   State   Treasury; 


[      8      ] 

they  are  paid  to  the  officers  who  collect  the  money,  or  to  the 
counties  where  the  officers  are  elected,  and  they  constitute  in 
part  the  fund  from  which  the  officer  is  paid  his  salary. 

The  net  amount  of  a  collection  is  what  remains  after  deducting 
the  costs  of  collection.  And  to  get  at  that  sura  the  Legislature 
points  out  the  mode  and  manner:  "Make  your  calculation  so 
as  to  produce  the  sum  which  I  demand  of  you,  and  fix  the  rate 
so  as  to  produce  that  amount."  That  is  all;  and  the  whole 
question  comes  back  all  the  time  to  the  proposition  of  the  coun- 
sel, that  the  Legislature  cannot  constitutionally  authorize 
them  to  do  that  thing.     Of  that  hereafter. 

Judge  Bennett,  in  his  argument  in  this  cause,  gives  us  a  col- 
umn of  figures  to  demonstrate  that  the  Board  have  raised  more 
money  than  the  law  authorized — a  column  of  figures  in  which 
he  takes,  as  the  first  proposition,  that  there  were  six  hundred 
and  thirty-six  million  dollars  of  property  in  the  State  of  Cali- 
fornia. He  then  adds  to  the  amount  required  to  be  raised  by 
the  Legislature,  the  costs  of  collection,  at  the  rate  of  twenty 
per  cent;  then  takes  the  fifty  cents  on  the  hundred  dollars,  cal- 
culates how  much  money  it  will  raise  on  six  hundred  and 
thirty-six  million  dollars,  and  states  as  the  result  of  that  calcu- 
lation, that  this  Board  has  undertaken  to  raise  hundreds  of 
thousands  of  dollars  more  than  the  law  authorized  them  to 
raise. 

ISTow,  what  is  the  plain  simple  fact  which  appears  in  the 
record  here — in  the  testimony  and  the  documents?  This  val- 
uation of  six  hundred  and  thirty-six  million  dollars  of  prop- 
erty includes  all  the  Government  property — State  and  United 
States — as  well  as  of  counties  and  cities,  of  all  kinds.  The 
whole  was  assessed  by  the  Assessor,  went  into  his  returns,  and 
was  before  this  Board,  and  constituted  a  part  of  tnis  grand 
total.  In  addition  to  all  this,  the  assessments  ajipearing  upon 
the  face  of  the  proceedings  before  the  Board  were,  in  many  in- 
stances, utterly  illegal,  incapable  of  being  enforced,  and  many 
of  them  were  upon  personal  property,  the  owner  having  no 
real  estate — nothing  that  could  be  reached  by  the  executive 
power  of  the  State. 

All  these  matters  were  before  this  Board  for  consideration 
when  engaged  in  the  important  duty  of  ascertaining  what  per- 


[      9      ] 

centfigc  would  produce  the  revenue  required.  So  that  it  is  a 
false  calculation  entirely,  which  my  friend  makes,  when  he  es- 
timates upon  the  basis  that  six  hundred  and  thirty-six  million 
dollars  was  the  value  upon  which  taxation  could  be  levied  and 
collected.  It  is  not  true  in  fact,  nor  was  the  calculation  made 
upon  any  such  basis.  I  do  not  propose  to  waste  any  time 
upon  any  question  of  that  sort.  I  projjose  to  get  it  out  of  the 
case,  so  far  as  I  am  concerned,  and  to  return  to  it  no  more. 
There  is  nothing  really  in  it  upon  which  this  Court  can  act  in 
any  way,  shape,  or  form. 

I  say  that  this  Court  has  not  the  constitutional  power  to  re- 
view any  action  of  this  Board  which  is  within  the  limits  of  the 
authority  given  them  by  the  law.  Of  course,  in  what  I  say 
upon  this  branch  of  the  argument,  I  am  assuming  the  validity 
of  the  law  itself,  as  we  must;  because  the  argument,  which 
seeks  to  induce  your  Honors  to  inquire  into  the  manner 
in  which  the  Board  have  performed  their  powers,  presupposes 
the  validity  of  the  authority  under  wJiich  those  proceedings 
were  had. 

DOUBLE   TAXATION. 

The  counsel,  in  talking  about  double  taxation,  said  he  relied 
not  upon  the  proof,  for  there  was  none,  but  that  he  assumed 
that  it  was  the  presumption  of  law  that  the  Ass'essor  had  as- 
sessed the  other  party,  because  the  law  made  it  his  duty  to  do 
so.  He  therefore  contended  that  there  is  a  case  of  double  tax- 
ation here,  since  we  are  to  assume  that  the  officers  have  done 
their  duty  ayd  have  taxed  both  parties  to  these  transactions  of 
loan  and  mortgage.  I  shall  not  waste  any  time  upon  the  ques- 
tion, of  whether  the  existence  or  non-existence  of  mortgaged 
securities  affect  the  matter  in  hand.  It  does  not,  in  the  solu- 
tion of  this  question,  make  a  particle  of  difference  one  way  or 
the  other  whether  a  solvent  debt  is  secured  by  mortgage  or 
not;  it  has  nothing  to  do  with  the  case;  it  is  a  false  quantity; 
it  does  not  aifect  it  one  way  or  the  other. 

Now,  I  answer  in  the  first  place  that  the  presumption  of  the 
law  is  directly  the  reverse  of  what  the  counsel  suggests,  and 
that  it  appearing  on  the  face  of  the  proceeding  that  the  holder 


[     10     ] 

of  a  mortgage  or  the  owDcrof  a  solvent  debt  has  been  assessed 
and  taxed,  the  presumption  of  the  law  is  that  the  same  officer 
did  not  assess  the  other  party  to  the  transaction  for  the  same 
thing.  I  meet  his  presumption  by  another  presumption;  and  I 
say,  in  the  second  place,  that  in  order  to  make  a  case  between 
the  State  and  its  cit  zens,  and  its  officers,  the  facts  must  show  a 
case  of  actual  double  taxation  in  point  of  fact;  not  by  infer- 
ences, not  by  argument,  not  by  presumption — but  by  actual, 
indisputable  fact  reduced  to  proof  and  affirmed  on  the  face  of 
the  proceedings. 

All  these  questions,  then,  may  it  please  your  Honors,  I  do  not 
think  are  in  this  case  at  all;  and  I  do  not  propose  lo  follow  the 
counsel  out  or  attempt  to  answer  their  various  propositions 
upon  matters  which  are  not  in  the  record.  I  shall  have  enough 
to  do  to  attend  to  those  matters  which  are  in  the  record.  Yet, 
I  shall  discuss  some  of  the  questions  which  they  have  consid- 
ered, notwithstanding  I  do  not  think  them  presented  in  the 
record. 

QUESTIONS    SETTLED. 

I  suppose  I  shall  not  be  assuming  too  much  when  I  say  that 
in  this  ai'gument  we  are  to  consider  some  things  as  being  set- 
tled; that  we  are  not  at  sea,  having  no  principle  to  guide  us, 
and  having  no  decision  upon  which  we  can  rely  as  a  basis  of 
argument.  It  will  not  be  asserted  that  no  decision  of  this  or 
any  other  Court  is  to  have  any  weight  or  authority  except  that 
weight  or  authority  which  it  is  entitled  to  by  the  force  of  its 
argument.  I  think  there  are  some  things  that  I  e,m  at  liberty 
to  consider  as  settled  finally,  upon  which  argument  can  safely 
base  itself.  If  we  have  no  such  fixed  principles,  no  ascertained 
opinions,  ujjon  questioris  of  this  character,  I  do  not  see  how  we 
can  have  any  argument  whatever.  Now,  can  it  be  disputed 
that  the  whole  power  of  taxation,  as  to  objects,  as  to  purposes, 
as  to  amounts,  belongs  to  the  legislative  authority,  without 
limit,  without  control,  without  restriction?  No  case  has  ever 
questioned  it  here  or  elsewhere.  This  Court  has  repeatedly  so 
determined  in  every  way  in  which  the  question  has  ever  been 
presented.  Then,  I  am  at  liberty  to  assume  that  as  a  proposi- 
tion which  is  indisputable,  and  upon  which  I  can  proceed  to 


[  11  ]   • 

argne.  Is  it  not  equally  well  settled  that  the  wisdom  or  the 
justice  of  tlie  exercise  of  the  taxing  power  is  not  a  subject  of 
judicial  inquiry,  nor  the  purposes  to  which  the  State  intends  to 
or  may  apply  its  revenues?  No  case  has  ever  disputed  that,  that 
I  am  aware  of.  I  think  it  is  equall}^  apparent  that  the  power  of 
taxation  is  not  confined  to  property  as  such,  but  extends  to  every 
conceivable  object  within  the  limits  and  jurisdiction  of  the  State. 
In  The  People  v.  JlcCreery,  while  the  Court  reverses  the  pre- 
vious decisions  in  some  respects,  it  affirms  them  in  others;  and 
amongst  them,  on  this  particular  subject,  it  affirmed  and  recog- 
nized the  case  of  The  People  v.  Naglee,  in  which  the  opinion  was 
written  hy  my  learned  friend  wlio  is  now  arrayed  in  opposition 
to  his  own  doctrines,  as  then  announced.  That  case,  followed 
by  the  case  of  The  People  v.  Coleman,  so  far  as  they  have  been 
sustained  and  recognized  by  the  present  Court,  do  not  seem  to 
me  to  be  liable  to  attack.  They  declare  the  doctrine  that  the 
Legislature  can  tax  everything — professions,  business  incomes, 
instruments,  contracts — everything.'  Naj^,  all  the  thousand 
things  that  were  suggested  by  the  imagination  of  the  learned 
gentleman  (Jeremiah  Clark)  who  leaped  so  suddenly  into  the 
arena  the  other  day,  like  the  goddess  of  war  and  of  wisdom 
from  the  brain  of  Jupiter,  armed  cap-a-pie,  with  his  hand 
against  every  man,  and  scattering  the  preconceived  notions  of 
Courts  and  Legislatures  as  though  they  were  of  mere  gossa- 
mer. 

I  say  there  is  no  limit  to  the  power  of  the  Government  over 
the  subject  of  taxation,  unless  that  limit  can  be  found  in  the 
exact  and  particular  provision  of  our  own  Constitution,  or  of 
the  Constitution  of  the  United  States.  No  principles  of  rea- 
soning, no  refined  disquisitions,  no  higher  law,  has  ever  been 
held  by  any  respectable  Court  to  interfere  with  or  control  the 
power  of  the  legislative  body — the  body  that  wields  all  the 
sovereign  powers  of  the  State  over  this  subject.  I  say  that 
nobody,  at  this  date,  pretends  that  the  legislative  power  is  not 
supreme  over  these  subjects.  We  are,  also,  then,  I  appre- 
hend, to  take  it  for  granted,  and  I  understand  it  to  be  yielded — 
although  in  the  very  breath  in  which  they  make  the  admission 
the  counsel  go  ofi"  into  abstractions,  learned  and  refined,  which 
defeat  the  whole  force  of  the  admission,  and  render  it  nugatory — 


.    [     12     ] 

that  a  solvent  debt  (I  use  the  expression  for  brevity),  whether 
secured  by  mortgage  or  not,  is  property,  is  subject  to  taxation, 
and  must  be  taxed. 

If  there  is  any  virtue  in  decisions — if  there  is  anything  in  the 
admissions  which  the  learned  gentlemen  have  made,  every  one 
of  them,  in  the  course  of  the  argument — then  a  solvent  debt 
is  property  and  taxable.  I  might  also  contend,  although  it  is 
not  necessary  for  my  purpose,  nor  for  my  argument,  that  this 
whole  doctrine  of  equality  and  uniformity  required  by  the  Con- 
stitution, applies  only  to  a  direct  tax  upon  property  alone,  as 
such,  and  has  no  application  to  any  other  species  of  taxation 
whatever.  It  is  not  necessary  for  me  to  assume  any  such 
proposition,  and  I  do  not,  therefore,  discuss  it  at  all;  but  I 
intend  to  meet  the  gentlemen  upon  their  own  ground.  These 
things,  which  I  have  attempted  to  specify,  I  look  upon  as  no 
longer  open  to  argument. 

TAXATION    OF    CREDITS    IN    CALIFORNIA. 

Now,  then,  may  it  please  your  Honors,  before  taking  up  the 
questions  we  are  to  discuss,  I  propose,  very  shortly,  to  review 
the  legislative  action,  as  well  as  constitutional  provisions,  so 
far  as  I  have  ieen  able  to  look  into  them,  and  this,  both  of  our 
own  State  and  of  the  other  States,  upon  two  propositions: 
First,  upon  tlie  taxation  of  what,  for  brevity,  we  style  credits; 
and,  secondly,  upon  what  has  been  claimed  to  be  a  delegation 
of  legislative  power,  as  contained  in  the  Act  under  considera- 
tion. 

I  suppose  that  this  examination,  so  far  as  it  bears  upon  the 
questions  at  issue,  maj'  be  considered  as  useful  and  legitimate 
matter  of  argument;  it  is,  certainly,  to  your  Honors,  jvpersua- 
sive  argument,  if  it  shall  be  found  that,  under  all  constitutional 
provisions,  all  the  legislation  of  the  American  Governments,  so 
far  as  we  can  examine,  have  been  found  to  be  uniform  upon 
propositions  of  this  character,  to  a  greater  or  less  extent;  that 
the  practice  of  our  own  State,  the  consti'uetion  of  our  own  Con- 
stitution, and  our  own  legislation,  is  a  legitimate  construction, 
and  is  correct  in  princii^le. 

I  shall  take  but  a  very  little  time,  but  I  propose  very  briefly 
to  go  over  these  matters.     I  say,  and  I  believe,  that  the  prac- 


[     13     ] 

tice  of  the  State  of  California  is  the  practice  of  every  State  in 
this  Union,  and  has  been  sustained  by  every  judicial  tribunal 
before  whom  the  question  has  been  raised,  whether  upon  the 
same  or  different  constitutional  provisions,  in  this  rea'ard.  Let 
us  begin  with  the  legislation  of  California.  On  the  tliirtieth  of 
March,  eighteen  hundred  and  fifty,  at  the  first  session  of  the 
Legislature  after  the  Constitution  was  adopted,  the  Legislature 
passed  a  pvenue  law,  and  by  that  law  they  taxed  all  property, 
real  and  personal.  They  declared  what  constituted  the  per- 
sonal property  of  the  State:  moneys,  moneys  at  interest, 
solvent  debts;  thc}^  declared  that  personal  property  mortgaged 
was  the  property"  of  the  possessor,  and  must  be  taxed  to  him; 
they  declared  that  real  property  mortgaged  was  the  property 
of  the  mortgagor,  and  must  be  taxed  to  him  until  the  mortgagee 
took  possession  (under  the  ideas  prevailing  in  those  days,  that 
the  mortgagee  had  the  right,  in  default  of  pajnnent,  to  take  pos- 
session of  the  mortgaged  property);  they  declared  that  until 
that  event  happened,  the  mortgagor  should  be  assessed  and 
taxed  for  the  full  value  of  the  property.  When  the  mortgagee 
took  possession,  it  should  be  taxed  to  him  as  the  owner.  They 
directed  the  rates  of  taxation^  within  given  limits,  to  be  fixed  by 
Courts  of  Sessions.  They  established  a  County  Board  of  Equal- 
ization under  this,  the  verj^  first  law  which  they  ever  passed 
upon  the  subject  of  revenue.  In  eighteen- hundred  and  fifty- 
one  they 'passed  another  law,  continuing  these  same  provisions, 
fixing  the  State  tax  at  fifty  cents,  but  authorizing  the  Courts 
of  Sessions  to  fix  a  tax  not  to  exceed  fifty  cents  for  county 
purposes.  In  eighteen  hundred  and  fift3^-two  the}-  passed  ano- 
ther Act,  which  is  the  only  Act  that  has  ever  recognized  any 
exceptions,  as  to  the  liabilities  of  the  mortgagor  and  the  mort- 
gagee, and  which  only  lasted  one  year.  All  the  other  provis- 
ions are  the  same;  but  by  the  thirteenth  section,  they  pro- 
vided that  the  real  estate  mortgaged  should  be  assessed  to  the 
mortgagor,  but  he  should  only  pay  upon  the  value  above  the 
amount  of  the  mortgage,  and  the  mortgagee  should  pay  the 
tax  on  the  money  which  he  had  loaned,  and  to  secure  Avhich, 
he  had  taken  the  mortgage.  That  is  the  only  instance  in  the 
legislation  of  California  where  any  allowance  whatever  was 
made  in  favor  of  the  mortgagor,  as  between  him  and  the  mort- 


[     14     ] 

gagce.  The  statute  of  eighteen  hundred  and  fifty-three  imme- 
diately dropped  it,  but  continued  the  provisions  in  relation  to 
moneys  and  to  solvent  debts  exceeding  the  indebtedness.  All 
the  other  provisions  are  the  same.  As  to  real  estate,  the  mort- 
gagor is  required  to  pay  on  the  full  value  by  the  Act  of  eigh- 
teen hundred  and  fiftj'-three.  The  statute  of  eighteen  hundred, 
and  fifty-four  is  the  same — the  same  provisions  exactly.  The 
Act  of  eighteen  hundred  and  fifty-seven  is  the  same — money 
on  hand  or  on  deposit,  money  at  interest  secured  by  mortgage, 
or  otherwise,  solvent  debts.  It  taxes  all  property,  of  whatever 
nature.  The  Act  of  eighteen  hundred  and  fifty-eight  is  the 
same;  the  Act  of  eighteen  hundred  and  sixty  is  the  same.  All 
property  is  taxed,  real  or  personal,  with  the  same  provisions  as 
to  mortgages. 

Mr.  Felton — I  call  your  attention  to  the  fact  that  the  Act  of 
eighteen  hundred  and  fifty-nine,  extending  over  San  Fran- 
cisco, left  out  solvent  debts,  and  from  eighteen  hundred  and 
fifty-nine  to  eighteen  hundred  and  i3ixty-two  there  was  no  as- 
sessment of  solvent  debts  in  this  city. 

Mr.  HoGE — I  find  no  Act  for  that  year.  There  might  have 
been  some  exception  for  San  Francisco,  under  the  i^iebald  sj'S- 
tem  in  this  State  of  having  a  different  system  for  every  county 
in  the  State;  there  might  have  been  some  exception  that  left 
out.  solvent  debts,  but  contained  other  provisions  amply  suffi- 
cient to  cover  the  case.  This  Act  of  eighteen  hundred  nand 
sixty  went  farther,  and  the  forty-seventh  section  requiredluie 
Eecordcr  should  not  enter  satisfaction  of  the  mortgage  upon 
bis  record  without  an  affidavit  that  all  taxes  on  the  money,  or 
debt  secured  by  the  mortgage,  had  been  paid.  The  Act  of 
eighteen  hundred  and  sixty-one  contains  the  same  provisions- as 
to  money,  and  as  to  solvent  debts  mortgaged,  and  required  the 
Recorder  to  come  before  the  County  Board  of  Equalization  and 
produce  his  records,  to  show  what  niortgages  and  liens  were 
spread  upon  them,  so  that  those  officers  should  get  hold  of 
them  for  the  purpose  of  taxation.  The  only  Act  that  I  have 
found  api^lying  only  to  San  Francisco  is  the  Act  of  eighteen 
hundred  and  sixty -two,  containing  the  same  provisions.  The 
Act  of  eighteen  hundred  and   sixty-five  and  sixty-six  is  the 


[     15     ] 

same  as  the  preceding  Act;  and  so  the  Act  of  eighteen  hundred 
and  sixty-seven  and  eight  is  the  same,  and,  at  jjage  six  hun- 
dred and  seventy-four,  it  is  expressly  provided  that  all  prop- 
erty, of  every  kind,  name,  and  nature  whatever,  shall  be  sub- 
ject to  taxation,  and  be  taxed  to  the  owner  or  claimant.  The 
Act  of  eighteen  hundred  and  seventy-one  and  two,  as  to  Yoio 
County,  authorizes  the  authorities  of  that  county  to  tax,  for 
county  purposes,  not  to  exceed  seventy-five  cents,  and  for  roads 
not  to  exceed  fifty  cents.  The  Act  of  eighteen  hundred  and 
seventy-two  provided  that  all  moneys  belonging  to  the  State,  in 
the  bauds  of  the  Tax  Collector,  received  on  notes  secured  by 
mortgage  in  eighteen  hundred  and  seventy  and  seventy-one, 
shall  be  retained  for  the  use  of  the  counties  which  laid  and  col- 
lected the  tax,  and  directs  the  Tax  Collector  to  pay  over  the 
respective  amounts  to  the  several  counties. 

Thus,  from  the  foundation  of  the  State,  from  its  first  attempt 
to  exercise  the  taxing  power,  we  find  the  powers  complained 
of  are  exercised  in  both  respects — both  as  to  the  taxation  of 
what  are  called  credits,  and  as  to  the  delegation  of  power. 

TAXATION    OF    CREDITS   IN    OTHER    STATES. 

Now,  then,  a  few  words  as  to  other  States.  First,  what  are 
their  constitutional  provisions?  We  have  looked  into  the  Con- 
stitutions of  Arkansas,  Florida,  Illinois,  Indiana,  Kansas, 
Louisiana,  Michigan,  Minnesota,  Mississippi,  Nebraska,  Oregon, 
Tennessee,  South  Carolina,  Texas,  Virginia,  West  Virginia,  and 
Ohio — seventeen  States — and  find  that  they  all  require,  by  pro- 
visions almost  identical  with  our  own  in  this  regard,  that  all 
taxation  shall  be  equal  and  uniform.  Not  only  is  that  the  case, 
but  it  is  the  settled  doctrine  of  American  law  and  practice,  and 
is  the  practical  construction  of  every  Constitution  that  has  ever 
been  adopted  in  this  Union,  that  taxation  should  be  levied  with 
reference  to  equality  and  uniformity.  It  is  American  constitu- 
tional law.  Now,  of  those  States  that  I  have  named,  I  have 
been  able  to  look  into  the  legislation  of  Florida,  Illinois,  Indi- 
ana, Kansas,  Minnesota,  Michigan,  Oregon,  Ohio,  West  Virginia, 
and  Louisiana — ten  States — and  I  find  that  they  uniformly  tax 
credits  as  we  do,  with  more  or  less  variation  or  allowance. 
That  is  not  all.     I  have  looked  into  the  legislation  of  States 


[     16     ] 

which  have  no  particular  constitutional  provisions  bearing  upon 
this  question,  and  I  find  that  they  have  uniformly  done  the 
same  thing- — Kentucky,  Maine,  Iowa,  Connecticut,  Massachu- 
setts, JSIew  York,  Maryland,  New  Jerse}',  New  Hampshire,  Mis- 
souri, Wisconsin,  Georgia,  Alabama — thirteen  States.  Thus  we 
find  twenty-three  of  our  sister  States,  into  whose  legislation 
we  have  had  an  opportunity  of  looking,  follow  the  system 
which  California  pursues,  and  I  think  that  I  hazard  nothing  in 
the  assertion  that  if  we  could  look  into  the  legislation  of  every 
State  in  this  Union,  we  would  find  that  there  is  not  a  single 
State  that  does  not  tax  property  of  this  description  in  tiie  same 
way  that  we  do.  No  case  has  been  cited  here,  nor,  I  api^re- 
heud,  can  be  cited,  which  holds  such  legislation  to  be  unconsti- 
tutional or  violative  of  correct  principles,  or  capable  of  being 
attacked  by  any  construction  of  any  constitutional  provision, 
1  do  not  care  upon  what  theory  their  system  of  taxation  may 
be  based. 

DELEGATION    OF   LEGISLATIVE   POWER. 

Next,  upon  the  other  branch  of  the  proposition  as  to  the 
delegation  of  legislative  power,  supposed  to  be  included  in  the 
power  to  fix  the  rate  of  taxation,  I  have  been  able,  in  the 
short  time  allowed  me,  to  look  into  the  legislation  of  o)ily  a 
few  States  besides  our  own  upon  the  subject.  It  will  be  seen 
from  the  review  I  have  already  made  of  legislation  in  the  State 
of  California,  that  it  cannot  be  questioned  that  this  power  has 
been  uniformly  given  in  this  State  to  county  authorities  for 
county  purposes.  The  law  in  question  has  undertaken  to  give 
it  to  State  Boards  for  State  purposes,  and  to  County  Boards 
for  county  purposes.  Whether  this  is  in  any  sense  a  delegation 
of  legislative  power  is  a  question  which  will  come  up  hereafter. 
At  present  it  is  simply  a  question  of  what  is  legislative  prac- 
tice. Now,  in  the  State  of  Illinois,  with  a  similar  Constitution 
to  our  own,  they  constantly  delegate  the  power  and  the  duty 
to  fix  the  rate  of  taxation — in  some  instances  to  the  Governor, 
Auditor,  and  Treasurer  together,  in  others  to  the  Governor  and 
Auditor,  and  in  some  of  their  legislation  the  power  is  given  to 
the  Auditor  alone.  Of  course  I  am  familiar  with  that  legisla- 
tion, because  I  came  from  that  State.     The  power  has  always 


C    17     ] 

been  so  exercised  from  the  foundation  of  the  State  government. 
In  Florida  they  give  it  to  the  Controller,  a  constitutional  officer, 
I  presume,  under  their  Constitution;  whether  he  is  or  not  I 
have  not  ascertained.  In  Iowa  they  give  it  to  the  County 
Boards  of  Equalization  and  to  the  State  Board  of  Equalization, 
as  we  do;  and  Iowa  has  the  same  constitutional  provision  pre- 
cisely as  the  provision  cited  from  the  Constitution  of  the  State 
of  New  York  in  the  case  of  The  People  v.  Supervisors  of 
Kings  County,  which  was  decided  recently  by  the  Court  of 
Appeals  of  New  York,  and  which  was  supposed  to  have  a  bear- 
*  ing  upon  this  case.  In  relation  to  that  case,  I  will  say  that, 
with  the  same  constitutional  provision  precisely,  letter  for  let- 
ter, no  Court  in  Iowa  has  ever  attempteji  to  hold  that  such  a 
legislative  provision  was  unconstitutional  and  void.  In  the 
State  of  Iowa  they  have  had  that  provision  always  in  their 
Constitution.  It  got  into  the  Constitution  of  New  York  in 
eighteen  hundred  and  forty-six,  and  was,  no  doubt,  aimed  at  a 
particular  evil.  Although  the  Court,  in  delivering  the  opinion, 
assumed  that  this  was  the  first  instance  in  which  such  a  delega- 
tion of  power  was  ever  given  in  a  tax  law,  yet  it  was  demon- 
strated by  a  Senator  on  the  floor  of  the  Senate  of  that  State 
that  there  were  six  laws  within  four  years  passed  by  the  Leg- 
islature of  the  State  of  New  York  doing  that  very  thing,  and 
the  dates,  volumes,  and  pages  were  cited;  so  that  when  the 
Court  made  that  decision,  although  they  may  have  been  per- 
fectly correct  in  exj)ounding  their  own  Constitution,  upon  which 
they  decided  alone,  and  upon  a  provision  which  does  not  exist 
in  our  Constitution,  they  were  yet  so  ignorant  of  their  own  leg- 
islation that  they  asserted  that  that  was  the  first  instance 
known  in  the  State  in  which  such  a  provision  was  ever  placed 
in  a  tax  law!  It  only  shows  that,  although  Supreme  Courts 
are  constitutionally  supposed  to  be  infallible,  the  fact  does  not 
always  bear  out  the  constitutional  idea.  In  Georgia  they  give 
this  power  to  the  Governor,  assisted  by  the  Controller  General. 
In  the  former  argument  of  this  cause,  one  of  the  Justices 
asked  if  this  power  could  be  given  to  the  Governor.  I  said  I 
thought  it  could.     I  did  not  have  the  authorities  before  me,  but 


[     18     ] 

answered  that  I  thought  it  could.  I  find  that  the  very  thing 
which  his  Honor  the  Justice  suggested,  by  way  of  inquiry,  is 
done  in  Illinois,  in  Florida,  and  in  Iowa,  without  question.  I 
shall  not  go  into  this  legislation,  although  I  have  it  here  ab- 
stracted. It  will  be  found  to  be  almost  identical  with  our  own. 
No  State  has  ever  held  that  such  a  delegation  of  legislative 
power — if  it  is  to  be  styled  a  delegation  of  legislative  power — 
is  unconstitutional.  I  find  no  such  case;  and  the  only  case  that 
is  cited  and  relied  upon  is  this  case  in  New  York,  which  de- 
pends upon  their  own  constitutional  provision.  I  shall  con- 
tend, presently,  that  there  is  no  such  delegation  of  legislative 
power  in  these  provisions  of  this  law,  as  violate  any  constitu- 
tional principle.  I  do  not  think  this  doctrine,  which  the  coun- 
sel contend  for,  can  be  sustained  by  authority  or  reason.  It  is 
under  these  circumstances,  and  in  this  state  of  the  legislative 
and  judicial  history  of  our  own  and  other  States,  that  the  ques- 
tions, involving  the  constitutionality  of  our  existing  revenue 
laws,  are  presented.  The  constitutionality  of  the  law  under 
investigation,  it  seems  to  me,  receives  irresistible  support  from 
the  universal  practice,  under  whatever  constitutional  provis- 
ions, so  far  as  we  have  been  able  to  ascertain. 

CONSTITUTIONALITY    OF    THE   REVENUE   LAWS. 

I  come  now,  if  your  Honors  please,  to  discuss  the  particular 
propositions  which  have  been  made  in  relation  to  the  constitu- 
tional validity  of  the  legislation  in  question.  As  1  understand  the 
arguments  of  counsel  who  have  addressed  the  Court,  the  main 
objections  which  have  been  presented,  and  to  which  the  argu- 
ment has  been  directed,  are  these:  That  the  revenue  law,  in 
establishing  a  State  Board  of  Equalization,  violates,  first,  the 
provisions  of  Section  13,  Article  XI,  of  the  Constitution,  in 
relation  to  taxation,  in  giving  to  that  Board,  as  is  supposed, 
powers  that  belong  to  the  Assessor  to  be  elected  by  the  peoj^le; 
second,  the  provisions  of  the  third  and  fourth  Articles  of  the 
Constitution,  in  relation  to  legislative  powers,  and  that  it 
attempts  to  delegate  from  the  legislative  body  to  that  Board 
certain  legislative  powers.  The  third  Article,  as  you  will 
recollect,  divides  the  powers  of  the  Government  into  three  de- 
partments: legislative,  executive,  and  judicial,  and  j)rovides  that 


[     19     ] 

neither  shall  exercise  the  powers  of  the  other.  The  fourth 
Article  provides  that  legislative  power  shall  be  vested  in  a 
general  assembly;  and,  third,  that  the  taxation  of  solvent  debts 
is  double  taxation,  and  therefore  renders  the  tax  void,  as  also 
violating  the  equality  and  uniformity  required  by  the  constitu- 
tional provisions  of  Section  13,  Article  XI. 

These  are  the  general  questions,  shortl}^  stated,  as  I  under- 
stand them,  which  liave  been  discussed.  As  we  have  already 
seen,  the  general  taxing  power  of  the  State  covers  all  subjects, 
and  is  not  limited  to  property  only,  whatever  may  be  the  defini- 
tion of  the  term.  The  only  limitation  upon  the  power  is 
equality,  uniformity,  and  where  property  is  to  be  taxed  Assess- 
ors shall  be  elected,  that  proj^erty  shall  be  taxed  in  proportion 
to  its  value — that  value  to  be  ascertained  as  directed  by  law. 
Outside  of  these  restrictions  the  power  is  supreme.  As  to  the 
means  and  manner,  the  mode,  the  form,  the  shape,  in  which  the 
power  shall  be  exercised,  the  Constitution  is  silent.  Keeping 
within  the  particular  restrictions,  all  else  is  of  legislative  cogni- 
zance. 

In  our  American  forms  of  government,  by  written  Constitu- 
tions, the  provisions  are  of  an  exceedingly  general  character, 
and  are  almost  entirely  mere  enunciations  of  fundamental  prin- 
ciples, supposed  to  be  the  distinguishing  characteristics  of  a 
republican  form  of  government.  A  general  chart  of  power  is 
laid  down,  with  very  little  detail.  This  was  the  great  object, 
and  it  is  only  of  late  years  that  the  nature  of  legislative  powers, 
of  governmental  action,  the  objects  and  purposes  to  which  it 
should  be  directed,  the  mode  and  means,  and  manner  in  which 
the  sovereign  power  should  be  restrained  and  limited,  and  con- 
fined to  purposes  and  objects  consistent  with  an  enlarged  idea 
of  public  liberty  and  private  rights,  have  become  the  subjects 
of  so  much  discussion,  both  in  legislative  and  constitutional 
assemblies. 

Now,  the  cardinal  object  of  all  constitutional  construction  is 
to  advance,  to  secure  the  harmony,  the  consistency,  the  pur- 
pose, the  design,  not  only  of  its  several  provisions,  but  of  the 
whole,  so  as  to  carry  out  the  powers,  the  duties  of  a  govern- 
ment, intended  to  last  for  all  time,  to  protect  and  advance  all 
the  great  interests  of  a  State.     It  is  the  chart  of  a  government, 


[     20     ] 

and  not  to  be  technicallj,  narrowly  construed,  and  confined  to 
the  destruction  of  its  power  for  good — the  destruction  of  the 
very  object  of  all  Constitutions — to  give  to  the  government  the 
power  to  protect  the  liberties  of  its  people;  to  protect  and  secure 
the  rights  of  property  and  of  individuals.  Our  Constitution, 
framed  in  accordance  with  this  idea,  gives  to  the  Legislature 
power  over  the  whole  subject  of  values,  of  equality,  of  uni- 
formity— gives  to  the  Legislature  the  power  to  provide  means 
of  ascertaining  the  information  necessar}^  to  comply  with  the 
constitutional  requirement  of  equality  and  uniformit3\ 

This  is  the  great  leading  idea,  not  only  of  our  Constitution, 
but  of  all  American  forms  of  government.  "When  our  Con- 
stitution provides  for  the  election  of  Assessors  it  provides 
for  one  of  those  means  ;  it  employs  one  of  those  agencies 
which  it  is  within  the  power  of  the  State  to  use  in  order 
to  acquire  the  necessary  information  upon  which  it  is  to  act 
in  securing  the  equality  and  the  uniformity  that  the  Consti- 
tution demands.  But  that  is  only  one  of  the  means,  one  of 
the  instruments,  which  may  be  used.  We  must  construe  it 
according  to  its  language,  and  its  very  language  shows  that 
the  Constitution  gives  to  the  Legislature  the  whole  subject; 
the  whole  means  by  which  shall  be  secured  that  equality 
and  that  uniformity  over  the  whole  State,  in  every  section 
or  25ortion  of  the  State;  over  those  smaller  subdivisions  of 
the  Slate  government,  the  counties,  cities,  and  towns — for  the 
subdivisions  get  all  their  power  from  the  legislative  author- 
ity, as  a  portion  of  the  State;  as  an  instrument  of  the  State — 
as  a  means  of  carrying  out  the  great  duties  imposed  upon  the 
government  of  the  State  by  the  provisions  of  the  Constitution. 
They  are  one  of  the  means  by  which  the  legislative  body  operates 
over  the  people  of  the  whole  State.  This  great  power  was  con- 
fided entirely  to  the  Legislature.  Valuation  is  onlj^  one  means  of 
attaining  the  great  end  in  view;  it  is  not  the  thing  itself.  Ours 
is  not  a  system  of  taxation  based  upon  valuation.  It  is  a  sys- 
tem of  taxation  based  upon  uniformity,  equality  between  all 
sections  of  the  State,  and  over  the  people  and  property  of  the 
State;  and  the  valuation  is  but  a  means  to  carry  out  the  con- 
stitutional provision;  nothing  more  nor  less.  To  hold  other- 
wise, is  to  emasculate  the  Government  of  the  power  to  carry 


[     21     ] 

out  its  duties  under  the  Constitution;  to  deprive  it  of  all  means 
of  arriving  at  the  very  cardinal  end  tluit  all  constitutional 
means  aim  at.  All  these  means,  modes,  and  manners  are  but 
subsidiary  to  the  great  leading  and  central  idea  of  the  Consti- 
tution itself 

To  carry  out  the  argument  on  the  other  side  to  its  legitimate 
and  necessary  conclusion,  where  would  it  lead  to?  The  whole 
power  of  taxation  over  the  property  of  the  State  would  be  left 
to  the  Assessors.  Elected  by  the  different  subdivisions  of  the 
State  for  the  purpose  of  valuation  with  a  view  to  taxation,  they 
would  control,  without  limit  and  beyoAd  the  reach  of  any 
legislative  action  whatever,  the  whole  subject  of  taxation. 
This  would  be  the  result  if  the  argument  advanced  on  the  other 
side  is  to  be  sustained.  The  argument  of  necessity  presupposes 
that  the  action  of  the  Assessor  is  final  and  conclusive  upon  all 
branches  of  the  Government.  It  goes  to  this  extent,  and  it 
cannot  stop  short  of  it  without  yielding  up  the  whole  question; 
and  my  learned  friend,  Judge  Bennett,  with  his  accustomed 
directness,  immediately  assumes  that  as  the  true  proposition. 
He  argued  that  the  power  does  go  to  that  extent,  and  the  very 
necessities  of  his  argument  compelled  him  to  assume  the  posi- 
tion that  the  action  of  the  Assessor  is  bej'ond  the  reach  of 
legislative  control,  or  of  control  hy  any  means  whatever. 

Is  there  any  provision  in  the  Constitution  which  renders  the 
action  of  the  Assessors  final  and  conclusive?  If  there  is  not, 
the  whole  question  is  j'ielded.  I  ask  your  Honors,  whence  comes 
the  power  of  the  Legislature  to  give  the  County  Boards  of 
Supervisors  the  right  to  interfere  with  or  control  the  valuations 
made  by  a  constitutional  officer,  who,  as  is  claimed,  is  elected 
for  that  piirpose,  and  who  alone  has  the  power  of  assessing? 
That  officer  is  the  Assessor.  The  argument  assumes  that  the 
Assessor  is  the  constitutional  officer  to  whom  is  committed  the 
subject  of  valuation  for  the  purpose  of  taxation,  and  upon  that 
theory  his  action  is  of  necessity  final,  and  can  no  more  be  con- 
trolled by  legislative  action  through  a  County  Board  than 
through  a  State  Board.  The  Constitution  provides  for  the  offi- 
cer, and  the  Legislature  carried  out  the  constitutional  provis- 
ions at  the  very  first  session  of  the  body  convened  after  the 
adoption  of  the  Constitution,  by  providing  for  the  election  of 


[     22     ] 

Assessors,  and  for  the  duties  of  Assessors.  We  have,  then,  the 
officer  provided  for  by  the  Constitution  and  established  by  law, 
and  how  are  you  going  to  got  any  control  over  his  action  upon 
the  theory  of  the  learned  counsel?  For  we  are  now  treating  of 
this  question  upon  his  theory  as  to  the  restriction  of  legislative 
power.  The  whole  subject  of  valuations  belongs  to  the  As- 
sessor elected  by  the  people,  says  the  counsel,  and  no  power  to 
inquire  into  or  interfere  with  his  action  is  lodged  anywhere. 
That  is  the  inexorable  result  of  his  argument.  It  forces  hira  to 
that  conclusion,  to  that  position,  and  without  it  there  is  noth- 
ing in  the  argument  one  way  or  the  other. 

The  idea  of  the  Constitution  is,  of  course,  that  this  equality 
and  uniformity  shall  extend  to  the  whole  State;  that.no  part  of 
the  State  shall  have  any  advantage  over  another,  but  that  all 
shall  work  harmoniously  to  the  same  end.  Experience  in  this 
and  other  States  shows  that  such  a  result  cannot  be  accom- 
plished by  local  Assessors  alone.  To  admit  that  the  Legislature 
can  authorize  Couut}^  Boards  of  Equalization — no  matter  how 
the  members  of  such  Boards  are  appointed  (for  I  contend  that 
the  provision  in  regard  to  elections  has  no  bearing  upon  this 
question),  yields  the  whole  question.  It  is  of  no  consequence 
whether  the  Board  to  whom  the  counsel  claims  the  povver  is 
delegated,  is  elected,  or  appointed;  the  object  of  creating 
Boards  of  Equalization  is  to  control  the  action  of  the  As- 
sessor— the  action  of  a  constitutional  officer;  and  he  is  as  much 
beyond  the  reach  of  a  Board  whose  members  are  elected  as  of 
one  whose  members  are  appointed.  It  is  attempted  to  show 
that,  under  the  constitutional  provisions  in  relation  to  the  es- 
tablishment of  town  and  county  governments  and  the  election 
of  Boards  of  SupervivSors,  the  Legislature  might  give  to  County 
Boards  the  right  to  control  the  action  of  the  Assessor  and  to 
review  his  valuations.  I  apprehend  there  is  nothing  in  that 
position  at  all;  such  provisions  have  no  bearing  upon  the  ques- 
tion as  to  the  power  of  the  Legislature  to  go  back  of  the  action 
of  the  Assessor.  If  the  argument  that  the  Constitution  gives 
the  Assessor  the  whole  power  of  assessing  be  correct,  his  assess- 
ments must  be  final  and  conclusive.  Whence  comes  the  i)ower, 
then,  that  has  been  conferred  upon  the  County  Boards  of  Equal- 
ization?    This  Court  has  always  sustained  the  validity  of  such 


C     23     ] 

Boards  and  of  their  action  upon  the  valuations  of  the  Assessors 
when  illegally  or  imperfectly  made.  How  can  the  exercise  of 
this  power  be  reconciled  with  the  Constitution,  except  upon  the 
theory  that  the  whole  subject  of  taxation,  the  valuations  of 
property,  the  manner,  the  time,  and  all  the  proceedings  neces- 
sary to  meet  the  requirements  of  the  Constitution,  are  subject 
to  legislative  control? 

I  repeat  it,  then,  that  the  uniform  practice   of  the  Govern- 
ment, the  provisions  of  the  Constitution,  the  necessary  func- 
tions of  Government,  are  opposed  to  the  theory  of  the  learned 
counsel.     The  powers  of  the  State  Board  of  Equalization,  as 
given  by  this  law,  are  directed  towards,  and  confined  to,  the 
valuations  made  by  the  Assessors.     The  assessments  must  be 
laid  before  the  Board,  and  upon  such  data  they  must  so  equalize 
the  valuations  as  to  secure  equality  and  uniformity  throughout 
the  State.     The  object  is  to  secure  equality  and  uniformity  in 
taxation;  the  data  to  be  acted  upon  is  the  valuations  made  by 
the  Assessors;  and  the  Board  is  merely  the  instrument  used  to 
attain  the  object.     That  object  lies  at  the  foundation  of  the 
constitutional  provision  on  this  subject,  and  the  legislation  of 
this  State  has  been  uniformly  consistent  with  it.     The  argument 
that  this  law  attempts  to  give  the  Board  power  to  assess  is 
utterly  unfounded.     They  have  nothing  whatever  to  do  with 
fixing  the  valuations  in  the  first  instance.     They  cannot  assess 
any  property.     They  do  not  deal  with  the  property.     They  act 
upon  the  valuations  already  made  by  the  Assessor.     In   this 
regard  they  have  but  one  duty  to  perform:  they  examine  what 
the  Legislature  requires  to  be  placed  before  them — the  assess- 
ment rolls  of  the  different  counties,  prepared  by  the  constitutional 
officers;  the  description  of  all  the  property  in  the  State,  with 
the  names  of  the  persons  who  own  it — in  order  to  see  that  the 
assessments  in  the   different  jjortions  of  the  State  have  been 
made  upon  correct  and  like  principles.     It  is  their  duty  to  see 
that  the  Assessors  all  follow  the  same  rules;  to  see  that  while 
the  Assessors  in  one  section  of  the  State  proceed  upon  a  correct 
plan,  the  Assessors  in  other  sections  shall  not  follow  other  and. 
erroneous  rules.     Thus,  the  Board  is  to  secure  justice  to  all  tax- 
payers— equality    and   uniformity  of  taxation    throughout  the 
State.     Thus  they  are  to  prevent  what  the  Supreme  Court  of 


[     24     ] 

Illinois,  in  the  case  cited  here,  from  the  forty-sixth  volume  of 
Illinois  Eeports,  characterize  as  "gross  inequalities,"  "mon- 
strous evils,  inflicting  injustice  upon  the  individual  property 
owner,  and  robbing  the  treasury  of  the  State  of  its  just  reve- 
nue." There,  the  Court  say  that  if  the  Legislature  have  no 
power  to  correct  such  great  evils,  it  is  indeed  "  a  feeble  instru- 
ment, and  the  sooner  it  is  overhauled,  and  its  weak  places 
strengthened,  the  better."  Without  a  State  Board  of  Equaliza- 
tion here,  the  same  thing  would  exist  in  this  State.  The  object, 
then,  of  our  Constitution  was,  not  to  increase  taxation  nor  to 
reduce  taxation,  not  to  give  this  Board  any  power  over  the  sub- 
ject of  taxation,  but  merely  to  equalize  the  assessments  so 
that  there  shall  be  a  harmonious  and  equal  system  of  valuation, 
applicable  to  all  the  property  of  the  State.  That  was  the  whole 
object,  and  there  is  nothing  in  the  law  whatever  which  gives 
the  Board  any  power  over  taxation. 

The  same  requirement  of  the  Constitution  is  applicable  to 
taxation  for  counties,  towns,  and  cities,  as  for  the  State.  The 
same  equality  and  uniformity  is  required  in  one  case  as  in  the 
other.  According  to  all  the  authorities,  the  Legislature  can  no 
more  authorize  equalization  for  a  county  than  it  can  for  the 
whole  State.  A  county  is  a  municipal  corporation,  having  sub- 
ordinate legislative  powers  for  local  purposes.  It  is  created  by 
the  Legislature,  and  derives  all  its  authority  from  that  source. 
Certainly  the  Legislature  cannot  authorize  its  creature  to  do  a 
thing  which  the  creating  power  itself  has  no  authority  to  do. 
The  Board  of  Supervisors  can  do  nothing  but  what  the  law 
authorizes  them  to  do. 

Now,  in  the  case  of  The  People  v.  Salomon,  in  the  forty-sixth 
Illinois  Reports,  which  the  counsel  has  not  even  deigned  to 
notice  at  all,  the  Court  discusses  this  question  of  equalization 
upon  constitutional  grounds,  and  reaches  the  conclusion  that  it 
is  not  only  right,  but  that  it  is  within  the  constitutional  power 
of  the  Legislature  to  establish  a  State  Board  of  Equalization, 
and  that  it  was  absolutely  essential  to  do  so  in  order  to  carry 
out  the  mandate  of  the  Constitution  to  secure  equality  and 
uniformity.  No  case  has  been  cited  to  the  contrary,  and  no 
case  can  be  cited.  It  is  well  known  that  in  every  State  in  the 
Union  the  same  inequalities  have  followed  where  there  has  been 


[     25     ] 

DO  State  Board  of  Equalization.  There  is  not  a  State  in  the 
Union  that  does  not  establish  in  some  form  or  other  a  Board  of 
Equalization  to  secure  that  equality  and  uniformity  recognized 
as  necessary,  either  in  so  many  words  in  the  Constitutions,  or 
by  the  j)rtictical  construction  of  the.  Constitutions,  of  all  the 
States.  If  there  had  been  any  such  case,  the  learned  counsel 
would  doubtless  have  found  it  out  and  cited  it  here.  My  con- 
clusion is  that  there  is  no  such  case.  I  have  searched  very 
industriously  to  find  such  authority,  but  I  have  not  found  a  single 
case  M'here  the  constitutional  right  of  the  legislative  body  to 
provide  the  means,  and  the  mode,  and  manner  of  taxation,  so  as 
to  secure  uniformity  and  equality,  has  ever  been  questioned  by 
a  Court  of  justice;  yet  I  know  the  power  has  been  exercised 
from  the  foundation  of  this  Government  to  the  present  time. 

Mr.  Felton — Is  there  any  Constitution  like  ours  on  that  sub- 
ject? 

Mr.  HoGE — Certainly  there  is. 

Mr.  Felton — Containing  the  same  clause  as  to  the  manner  in 
which  Assessors  shall  be  elected? 

Mr.  HoGE — There  may  be  no  provision  exactly  like  ours  in 
that  respect.  There  may  be  no  provision  in  any  other  Constitu- 
tion requiring  that  the  Assessor  shall  be  elected  by  the  quali- 
fied electors  of  the  district  in  which  the  property  is  situated. 
But  1  have  already  shown,  so  far  as  I  think  it  necessary,  that 
the  clause  in  the  Constitution  relative  to  the  election  of  As- 
sessors does  not  affect  the  question  of  revising  and  equalizing 
assessments,  for  the  reason  that  the  Board  does  not  assess.  I 
apprehend  that  this  Court,  in  the  construction  of  so  grave  a 
statute  as  this,  upon  which  the  State  depends  for  its  entire 
revenue  for  two  fiscal  years,  will  not  be  persuaded  into  pro- 
nouncing the  law  unconstitutional  upon  a  point  so  technical  as 
that,  especially  since  this  law  is  in  conformity  with  the  legis- 
lative history  of  this  State  and  of  almost  every  other  State  of  the 
Union.  Courts  do  not  seize  upon  the  merest  pretenses  for 
declaring   legislative  acts  invalid.     They  hesitate  long  before 


[     26     ] 

annulling  a  solemn  act  of  the  sovereign  will,  and  do  it  only 
when  the  conflict  with  the  fundamental  law  is  apparent  and 
indisputable. 

But  I  do  not  projjose  to  consume  any  further  time  in  relation 
to  the  proposition  as  to  the  Assessor. 

DELEGATION   OP   LEGISLATIVE   POWER. 

I  come  now  to  the  next  proposition,  under  the  same  general 
head,  which  is,  as  presented  by  the  counsel  on  the  other  side, 
that  the  power  given  to  the  State  Board  of  Equalization  to  fix 
the  rate  of  taxation,  for  State  purposes,  so  as  to  raise  the 
amount  of  revenue  required,  is  an  unconstitutional  delegation 
of  legislative  power.  As  to  the  manner  in  which  they  have 
exercised  the  power,  I  have  already  said  all  that  I  desire  to  say. 

I  understand  that  it  has  been  admitted  in  the  argument — I 
think  it  is  so  admitted  in  the  petition  for  the  rehearing,  signed 
by  Felton  and  Patterson,  and  certainly  it  was  admitted  in  the 
former  argument — that  it  would  be  j)erfectly  constitutional — 
would  be  no  delegation  of  legislative  power — if  the  Act  simply 
authorized  the  fixing  of  a  rate  suflicient  to  raise  a  given  sum. 
It  will  be  my  business  to  show  that  nothing  more  than  that 
power  is  given,  and  nothing  more  has  been  done  than  the  Legis- 
lature have  been  in  the  uniform  habit  of  authorizing  the  inferior 
subdivisions  of  the  State  Government  to  do.  They  have  uni- 
formly required  Boards  of  Supervisors  to  levy  taxes  within 
particular  limits,  and  to  fix  rates  necessary  to  produce  the 
amounts  desired  to  be  raised.  The  statute  books  are  full  of  such 
provisions,  and  I  do  not  understand  the  counsel  on  the  other 
side  to  question  this  power.  Now,  I  admit  that  the  taxation 
must  originate  with  the  legislative  power;  and  I  think  theprojD- 
osition  has  that  extent,  and  no  more.  That  is  equally  true  of 
every  political  division  of  the  State,  as  much  so  as  of  the  State  at 
large.  This  is  the  correct  principle,  and  it  is  so  laid  down  by 
Cooley,  on  pages  five  hundred  and  seventeen  and  five  hundred 
and  eighteen  of  his  work  on  "  Constitutional  Limitations."  That 
is  as  far  as  the  proposition  ever  did  go:  that  the  jDower  of  taxa- 
tion must  always  originate  with  the  Legislature.  How  it  shall 
be  carried  out,  what  agencies  shall  effect  the  design  of  the  State, 
I  never  understood  to  be  questioned  by  anybody  until  the  argu- 


[     27    ] 

ment  of  this  cause,  as  properly  belonging  to  the  legislative 
power.  At  least,  I  have  not  been  able  to  find  any  case  that  does 
go  to  any  such  extent,  except  the  New  York  case,  of  which  I 
have  been  speaking,  and  that  was  decided  upon  a  peculiar  con- 
stitutional provision.  Sections  thirty-six  hundred  and  ninety- 
six  and  thirty-seven  hundred  and  thirteen  of  our  Political  Code 
show  the  extent  of  the  power  that  has  been  given  to  this 
State  Board  of  Equalization.  Section  thirty-six  hundred  and 
ninety-six  provides,  "  at  the  same  time  the  Board  must  deter- 
mine and  transmit  to  the  Boards  of  Supervisors  of  each  county, 
the  rate  of  the  State  tax  to  be  levied,  and  collected,  which, 
after  allowing  for  delinquencies  in  the  collection  of  taxes,  must 
be  sufficient  to  raise  the  specific  amount  of  revenue  directed  to 
be  raised  by  the  Legislature,  for  State  purposes."  Section 
thirty-seven  hundred  and  thirteen  provides  that  "the  State 
Board  of  Equalization  must,  for  State  purposes,  for  the  twenty- 
fourth  and  twenty-fifth  fiscal  years,  fix  such  an  ad  valorem 
rate  of  taxation  upon  each  one  hundred  dollars  value  of  taxa- 
ble proj^erty  of  this  State,  as  will  raise  for  each  of  said  years" 
the  sums  specified  therein,  amounting  in  the  whole,  together 
with  other  amounts  required  to  be  raised,  to  two  million  three 
hundred  and  seventy-two  thousand  dollars.  This  is  the  power 
which  is  given  to  the  State  Board,  and  the  only  part  that  is 
questioned  is  that  which  sa3'8,  after  allowing  for  delinquencies, 
they  shall  ascertain  the  rate  of  taxation  necessary  to  raise  the 
amount  required. 

Now,  it  is  perfectly  apparent,  in  the  first  place,  that  this 
Board  has  no  discretion  as  to  the  amount  to  be  raised.  They 
are  to  raise  what  the  Legislature  directs  them  to  raise  and  put 
into  the  treasury — so  many  thousands  of  dollars.  It  seems  to 
me  to  be  very  apparent  that  the  only  operation  the  State  Board 
performs  is  simply  to  make  an  arithmetical  calculation,  after 
they  have  ascertained  the  amount  of  property  upon  which  taxes 
can  be  assessed,  of  the  percentage  necessary  to  I'aise  the  given 
amount.  That  is  all  that  is  delegated  to  it.  They  cannot  go  a 
step  further  under  the  law.  They  are  to  raise  two  million 
three  hundred  and  seventj^-two  thousand  dollars  for  particular 
purposes.  How  are  they  to  get  at  it?  The  Legislature  in- 
structs them,  by  the  various  provisions  of  this  Act,  how  to  do 


[    28     ] 

it;  instructs  them  to  examine  all  the  lists  of  property  in  the 
State,  to  see  what  can  be  collected;  to  equalize  the  assessments 
throughout  the  State,  so  that  the  tax  may  be  equal  and  uni- 
form, and  when  they  have  got  to  the  true  value  of  property 
they  are  to  make  the  calculation.     Now,  suppose  the  word  "  de- 
linquent" had  been  left  out  entirely,  and  the  section  had  just 
read  thus  (369G):  "  At  the  same  time  the  Board  must  determine 
and  transmit  to  the  Board  of  Supervisors  of  each  county  the 
rate  of  State  taxes  to  be  levied  and  collected,  which  must  be 
sufficient  to  raise  the  specific  amount  of  revenue  directed  to  be 
raised  by  the  Legislature  for  State  purposes."  What  would  have 
been  the  operation  of  it?     How  would  they  proceed  to  raise  the 
amount  demanded?     By  precisely  the  same  process.     No  other 
rate  was   ever  fixed  in   any  other  way  by  anybody,  either  by 
the  Legislature  or  anybody  else.     You  must  first  ascertain  the 
value  of  the  property  to  be  taxed,  and  you  must  then  see  what 
will  be  the  delinquencies  in  payment,  whether  the  law  saj^s  so 
or  not.     If  that  is  not  the  whole  operation,  I  am  unable  to  un- 
derstand the  language  of  this  law.     Heretofore  the  Legislature 
has  been  in  the  habit  of  receiving  the  estimates  of  the  Con- 
troller of  State.     When  they  were  about  to  pass  a  law  to  levy 
a  tax  they  took  his  estimates  to  see  how  much  was  required. 
Then  taking  his  returns  of  what  was  supposed  to  be  the  taxable 
property  throughout  the  State,  they  fixed  a  percentage  that  was 
certain  to  raise  the  revenue  required,  after  deducting  the  delin- 
quencies.    The  whole  experience  of  the  government  from  its 
foundation  shows  that  the  returns  invariabl}^  fell  short  about 
eighteen  or  nineteen  j^er  cent.     As  a  matter  of  course,  allow- 
ance must  be  made  for  that,  in  order  to  realize  the  amount 
required.     That  has  been  the  practice  heretofore.     It  was  an 
uncertain  j)ractice,  because  the  Legislature  was  operating  with- 
out sufficient  light  on  the  subject.     They  then  passed  this  law, 
intending  to  adopt  another  system,  which  does  not  jaeld  any 
legislative  power,  but  by  law  authorizes  the  taxation,  and  pre- 
scribes the  mode,  manner,  and  form  in  which  the  calculation  as 
to  the  rate  shall  be  made.     After  passing  the  law  authorizing 
the  taxation,  and  fixing  the  amount  they  desire  to  raise,  the 
Legislature  directs  these  agents  to  perform  the  duty  which  the 
Controller  had  heretofore  performed;    to  ascertain  what  was 


[     29     ] 

likely  to  bo  lost  in  the  collection,  and  then,  making  allowances 
for  that,  to  determine  what  percentage  will  raise  the  amount 
the  State  desires.  That  is  the  whole  of  it.  If  you  can  make 
out  any  delegation  of  legislative  power  in  that  Act,  I  am  un- 
able to  understand  the  term.  What  has  been  the  result?  It 
appears  in  the  record  in  this  case,  and  it  was  put  in  evidence, 
that  up  to  the  time  of  the  trial  of  this  cause,  there  had  been 
collected  two  million  and  seventy-nine  thousand  dollars.  There 
is  about  one  hundred  and  seventy  thousand  dollars  tied  up  in 
these  cases.  There  is  one  hundred  and  seventy  thousand  dol- 
lars here  of  the  two  million  three  hundred  and  seventy-two 
thousand  dollars  that  they  were  directed  by  the  Legislature  to 
collect.  Now,  that  is  the  fact,  and  that  is  the  whole  fact.  So 
it  appears  that  the  Board  have  not  levied  one  dollar  more  than 
they  had  a  right  to  levy,  and  they  have  not  collected  one  dollar 
more  than  they  ought. 

Mr.  Felton — Where  do  you  find  your  figures? 

Mr.  HoGE — I  get  them  from  the  Controller's  office.  I  am 
citing  them  now  to  show  you  that  when  this  Board  said  "fifty 
cents  on  the  dollar  will  raise,"  as  one  of  the  Commissioners 
testified,  "a  little  more  than  is  required,  if  it  is  paid  up  well, 
but  in  all  probability  it  will  raise  none  too  much,"  their  calcu- 
lation as  to  the  i^robable  delinquencies  was  correct. 

Now,  I  do  not  see  that  the  citations  of  other  provisions 
of  the  State  Constitution  in  relation  to  counties,  have  any 
application  whatever  to  this  question.  But,  one  thing  is  certain, 
that  either  they  have  no  application,  or  this  proposition  follows: 
That  the  Constitution  itself,  up.jn  its  very  face,  contemplated 
the  delegation  of  the  taxing  power — the  delegation  of  a  legis- 
lative power;  and  this  very  fact  is  constantly  alluded  to  by 
Courts  in  discussing  this  question  of  legislative  power.  Coun- 
ties— portions  of  States — have  been  uniformly  authorized  to  do 
these  things  here  contended  to  be  legislative  powers  which  it  is 
unconstitutional  for  the  Legislature  to  delegate,  and  the  Courts 
have  upheld  such  acts.  It  does  not  make  a  particle  of  differ- 
ence whether  the  power  delegated  is  for  a  local  or  a  general 
purpose.  We  are  talking  now  about  the  principle  that  no  dele- 
gation can  be  made.     I  am  quite  at  a  loss  to  see  what  difference 


[     30     ] 

there  is  between  a  local  and  a  general  law.  No  Court  has  ever 
put  it  upon  that  ground.  That  would  have  been  a  short  answer 
to  the  whole  proposition.  I  think  this  question  has  been  set- 
tled by  this  Court  heretofore — that  is,  if  we  are  to  consider 
questions  as  settled  by  legislative  practice  and  judicial  decisions, 
which  have  been  adhered  to  ever  since  we  have  been  a  State. 
I  think  the  case  of  Hardenbergh  v.  Kldd,  in  Tenth  California 
Eeports.  page  four  hundred  and  two,  and  Hohert  v.  The  Super- 
visors of  Butte  County,  in  Seventeenth  California  Eeports,  page 
twenty-three,  determine  the  question.  Of  course  your  Honors 
are  familiar  with  those  cases.  In  the  latter  case  the  Court 
cite  the  case  of  The  Cincinnati,  Wilmington  and  ZanesviUe  Rail- 
road Company  v.  Commissioners  of  Clinton  County,  in  the  Twenty- 
first  Ohio  Eeports,  page  eighty-eight,  (1  MeCook,  p.  88).  I 
shall  not  stof*  to  read  from  that  case,  or  from  any  case,  but  if 
your  Honors  will  examine  it,  you  will  find  that  this  precise 
principle  is  passed  upon  in  the  same  manner  as  in  our  own 
Supreme  Court.  As  I  have  said,  the  Ohio  case  is  cited  by  our  Su- 
preme Court  and  approved — and  repeatedly  cited  and  approved. 
The  same  question  is  decided  in  the  Thirty-fourth  of  Bar- 
bour, page  seventy-six,  in  the  case  of  The  Peop)le  v.  Haics.  I 
will  just  read  a  few  lines: 

"  It  is  no  objection,"  says  the  Court,  by  Clerke,  P.  J.,  "  to  this, 
that  the  Legislature  has  not  declared  the  precise  amount  of  the 
claim;  being  ignorant  of  the  exact  value  of  the  service,  the  Act 
specifies  a  maximum  amount  bej'ond  which  the  relator  shall 
receive  nothing,  at  least,  in  this  way,  for  the  services  already 
rendered;  and  it  indicates  the  method  by  which  the  actual 
amount  due  shall  be  ascertained.  This  the  Legislature  has  as 
much  authority  to  do  as  to  specify  the  exact  sum  absolutely, 
in  the  first  instance;  and,  in  neither  case,  have  the  Courts  power 
to  review  the  action  of  that  branch  of  the  Government." 

That  is  precisely  the  doctrine  laid  down  by  our  own  Supreme 
Court  when  they  say  that  the  mode  in  which  the  Legislature 
shall  exercise  its  legislative  power  belongs  to  that  body  to  de- 
termine, and  not  to  the  Courts;  that  the  whole  power  comes, 
not  from  the  discretion  of  the  ofiicer — not  from  the  discretion  of 
the  agent — but  comes  directly  and  solely  from  the  legislative 


[     31     ] 

will,  which  prescribes  what  shall  be  done,  and  leaves  the  details 
to  other  agencies;  that  the  Legislature  have  a  right  to  do  that; 
that  it  is  a  general  rule  that  where  a  legislative  body  has  the 
power  to  act,  it  ma}'  act  in  its  own  manner,  its  own  form,  and  it 
is  all  the  time  the  exercise  of  legislative  power  by  the  legisla- 
tive body;  that  it  is  not  necessary  for  the  Legislature  to  go  into 
details  and  specify  particularly  all  that  shall  be  done  under  the 
legislative  authority.  It  has  been  uniformly  held  everywhere, 
and  in  these  very  Now  York  cases  now  cited,  and  which  have 
been  cited  and  commented  on  by  this  tribunal  over  and  over 
again,  that  it  is  only  where  a  Legislature  delegates  the  power 
to  make  a  law  that  they  contravene  the  supposed  legislative 
right  to  make  laws;  that  nothing  short  of  that  is  such  a  dele- 
gation of  legislative  power  as  the  Court  can  interfere  with — as 
a  judicial  body  can  take  notice  of  and  control.  This  whole 
question  is  very  elaborately  discussed,  and  the  true  doctrines 
announced  by  the  Supreme  Court  of  Pennsylvania,  in  the  case 
of  Locke  et  al.,  reported  in  the  "  Legal  Intelligencer  "  of  March 
21,  1873,  No.  12,  p.  9.3. 

DOUBLE   TAXATION. 

The  next  proposition  that  I  propose  to  discuss,  and  which  I 
believe  I  have  stated  as  the  second  general  ground  of  complaint 
to  this  legislation,  is  the  question  of  double  taxation.  I  have 
already  shown  that  this  record  presents  no  such  question,  as  I 
think.  I  do  not  propose  to  stop  at  that,  but  I  propose  to  say  a 
few  words  on  that  question;  not  to  follow  all  the  arguments 
specifically,  but  to  consider  them  generally.  It  would  take  too 
much  time  to  go  over  all  those  arguments,  and  the  task  would 
be  more  tedious  than  profitable. 

The  very  first  suggestion  that  strikes  me,  when  I  come  to 
consider  this  question,  is  this:  IIow  can  this  Court  consider 
this  question  of  a  double  tax  at  all,  and  undertake  to  say,  when 
there  are  two  distinct  pieces  of  property  recognized  by  law  and 
admitted  here  in  the  argument  to  be  property,  that  one  of  them 
shall  pay  a  tax  and  the  other  shall  not  pay  it.  The  counsel 
admitted  that  these  credits  are  property,  that  they  should  be 
taxed,  that  all  property,  according  to  the  decisions  of  this 
Court,  must  be  taxed;  but  immediately  upon  making  the  admis- 


[     32     ] 

sion  they  undertake  to  say  that  they  are  not  property,  that 
they  ought  not  to  be  taxed,  that  they  are  not  distinct  pieces  of 
property,  and  that  the}^  have  already  been  taxed  in  another 
shape. 

Now,   what  is   double   taxation?      I  understand  it  to   be   a 
taxation   of  the   same  property  to  the   same  person   twice   in 
the  same  fiscal  year.      This  is  the  only  double  taxation  that 
any  Court  of  justice   can   inquire   into,  or  that  any  Court  of 
justice  ever  has  inquired  into.     Nobody  pretends  that  abstract 
justice  can  be  done  in  this   respect,  and  no   system  of   taxa- 
tion ever  has   been  devised  by  the  wit  of  man  that  ever  did 
avoid  double  taxation  in  some  shape  or  other.     In  a  case  in  the 
Supreme  Court  of  Connecticut,  reported  in  the  Thirty-fifth  of 
Connecticut  Eeports,  page  twenty,  the  Court  say  it  is  very  fre- 
quent that  taxation  is  double,  but  the  fact  that  the  law  imposes 
it  will  never  justify  the  Court  in  disregarding  it.     That  is  be- 
yond the  reach  of  judicial  correction.     How  are  you  going  to 
escape  double  taxation?    I  might  give  you  a  few  instances,  as  the 
counsel  have,  in  which  double  taxation  is  inflicted.     There  is  no 
relief  from  it,  except  to  ask  the  proper  bodies  to  have  the  correct- 
ive applied.     It  can  be  got  at  in  that  way,  and  in  that  way  only. 
We  allow  the  Assessor  from  March  to  August  to   make   his 
assessment.     Now,  take  this  instance:    The  Assessor  assesses  a 
flock  of  sheep,  valuable  sheep,  with  the  wool  ou  their  backs — 
taxes  the  full  value  of  the  sheep  to  the  owner,  and  in  the  very 
next  month  this  wool  is  in  the   hands   of  a  merchant  in  San 
Francisco,  and  another  Assessor,  when  he  comes  around,  finding 
the  wool  there,  taxes  it  to  the  merchant.     He  finds  the  hides  in 
the  possession  of  another  merchant,  and  he  taxes  them  to  him. 
"With  the  flock  of  sheep  the  hides  and  wool  have  already  been 
taxed.     The  sheep  with  the  wool  on  are  taxed  to  the  owner, 
and  after  the  wool  is  taken  ofi:'  it  is  taxed  again.     And  so  the 
Assessor  assesses  goods  in  a  store  in  this  city  to  the  owner  of 
the  store.     The  Assessor  in  Siskiyou  or  El  Dorado,  two  months 
afterwards,  finds  the  same  goods  there,  and  he  assesses  them 
again.     Here  is  another  instance.     Why,  there  is  no  such  thing 
as  any  system  without  more  or  less  direct  or  indirect  double 
taxation;  and  I  apprehend  it  will  be  a  long  time  before  you  will 
find  a  tribunal  which  will  hold  that  that  renders  the  assessment 


[     33     ] 

void.  You  cannot  avoid  it,  and  tlie  argument  of  the  counsel 
himself  shows  it.  It  is  said  that  we  have  adopted  a  system  of 
objective  taxation,  or  in  rem  taxation — a  system  by  which  j^rop- 
erty,  and  not  individuals,  is  taxed.  Very  many  ingenious  and 
metaphysical  arguments  are  based  upon  the  proposition  as  it  is 
carried  out  in  all  its  ramifications.  It  is  said  that  wo  have 
elected  that  system  and  must  follow  it  exclusively.  But  one  of 
the  counsel  on  the  other  side  contends  that  under  this  law  we 
have  mixed  that  sj'stem  with  the  in  personam  system,  and  that 
therefore  the  tax  levy  is  unconstitutional.  Now,  I  do  not  agree 
with  the  counsel,  that  the  State  has  adopted  the  system  of  in 
rem  or  objective  taxation,  or  that  taxation  has  anything  to 
do  with  the  wealth  of  the  State.  There  is  no  system  that  is 
based  upon  the  wealth  of  the  State.  There  never  wa.s  any 
system  of  taxation  which  was  based  upon  the  wealth  of  the  indi- 
vidual citizen  taxed.  Upon  that  theory,  acting  upon  the  refine- 
ments of  counsel,  we  may  presently  find  ourselves  in  a  State 
with  nothing  to  tax  at  all.  Suppose  the  whole  indebtedness  of 
citizens  of  the  State  exceeds  the  value  of  all  the  property  in 
the  State,  what  will  you  have  to  tax?  Nothing.  That  is  the 
result  of  the  argument.  It  maintains  that  the  taxable  property 
of  the  State  is  the  value  of  the  property',  less  the  indebtedness 
of  the  individual  taxpayers,  which  must  be  deducted.  The 
individual  banker,  if  he  happens  to  owe  six  millions  of  dol- 
lars, while  he  has  but  five  millions,  would  escape  taxation 
altogether.  The  balance  of  his  worldly  wealth,  my  friend 
Judge  Lake  contends,  is  the  subject  of  taxation;  he,  with  all 
this  property,  therefore,  would  escape  taxation,  because  the 
balance  is  against  him.  These  refinements  carried  out  would 
leave  the  State  without  property  to  tax,  and  we  would  have  to 
resort  to  direct  taxation  on  the  head,  which  the  American  peo- 
ple so  much  dislike. 

I  think  the  true  position  has  been  taken  by  the  Supreme  Court 
of  South  Carolina,  and  I  think  the  whole  confusion  on  this 
subject  comes  from  confounding  property  with  the  person.  In 
the  case  of  Barney  v.  The  Tax  Collector  (2  Bailey's  South  Caro- 
lina Reports,  page  688),  where,  in  considering  the  right  of  the 


[     34     ] 

State  to  tax  the  dividends  of  stock  in  the  Bank  of  the  United 
States,  owned  by  citizens  of  the  State,  the  argument  being,  not 
that  the  State  did  not  have  the  power  as  between  itself  and  its 
citizens  to  tax  such  property,  but  that  it  interfered  with  the 
constitutional  powers  of  the  General  Government,  and  was 
therefore  unconstitutional  and  void,  because  in  conflict  with  the 
Constitution  of  the  United  States,  Judge  Johnson  snya: 

''In  McCuUough  v.  The  State  of  Maryland,  the  objects  of  taxa- 
tion are  said  to  be  confined  exclusively  to  subjects  over  which 
the  sovereign  power  of  the  States  extends,  and  that  these  are 
things  which  exist  by  the  authority  of  the  State,  or  are  intro- 
duced by  its  permission;  and  I  am  persuaded  that  the  difficulties 
about  this  question  have  originated  in  confounding  the  person 
of  the  citizen  with  the  property  which  he  owns.  It  is  the 
citizen,  and  not  the  property,  which  paj^s  the  tax.  The 
property  is  referred  to  only  as  furnishing  a  rule  b}'  which  the 
amount  which  the  citizen  ought  to  pay  is  ascertained.  His 
j)ersonal  liability  is  measured  by  the  number  of  slaves  and  the 
quantity  of  land  he  owns;  b}'  his  receipts  of  interest  on  money 
loaned;  by  the  amount  of  his  professional  income,  or  stock  in 
trade,  etc.  And  where,  may  I  ask,  is  there  any  rational  dis- 
tinction between  a  tax  imposed,  in  respect  to  these  sources  of 
wealth  and  income,  and  wealth  derived  from  bank  and  Govern- 
ment stock?" 

In  the  case  of  the  Cleveland,  Painesvllle,  and  Ashtabula  B.  R. 
Co.  V.  The  Commonwealth  of  Pennsylvania,  reported  in  Vol.  5,  No. 
18,  of  the  Legal  Gazette,  p.  137,  the  question  was  whether  the 
Constitution  of  Pennsylvania  enjoined  the  Legislature  from 
imposing  a  tax  ujion  the  bonds  of  a  railroad  company  which 
were  held  by  parties  out  of  the  State,  the  bonds  themselves 
not  being  in  Pennsylvania,  but  beyond  the  territorial  limits  of 
the  State.  The  Court,  in  the  opinion  delivered  by  Judge  Field, 
assumes  the  proposition  as  understood  and  admitted  law,  that  a 
State  can  tax  everything,  bonds,  debts,  credits,  everything  with- 
in the  limits  of  the  State;  but  that  it  cannot  go  outside  of  the 
State  and  tax  a  bond,  although  it  is  payable  within  the  State, 
and  secured  by  a  mortgage  in  the  State.  The  Court  says  the 
mortgage  does  not  figure  one  way  or  the  other.     It  is  assumed. 


[     35     ] 

as  a  constitutional  axiom,  that  the  Legislature  may  tax  the 
creditor,  if  it  can  catch  the  creditor  within  the  State.  Nobody, 
so  far  as  I  find,  has  ever  questioned  the  right  of  the  State  to 
tax  credits  within  the  territorial  reach  of  the  State  law.  Now, 
the  very  same  idea  contained  in  the  South  Carolina  case  is  car- 
ried out  and  enforced  in  The  People  v.  Seymour  (16  Cal.,  p. 
332),  in  which  the  Court  goes  into  the  examination  of  the  tax 
laws  of  the  State  to  show  that  a  tax  is  a  debt  of  the  person, 
and  that  the  State  can  pursue  him  and  compel  him  to  pay  in  its 
own  time,  its  own  mode,  and  its  own  manner.  Is  not  that  the 
case  here  and  everywhere?  One  of  the  counsel  sought  to 
show  that  injunction  was  the  proper  remedy  in  this  case, 
upon  the  ground  that  the  law  made  this  tax,  the  moment  it  is 
imposed,  a  judgment  against  a  person,  a  lien  against  all  of  his 
property,  an  execution  upon  everything  within  the  reach  of  the 
execution.  What  becomes  of  your  objective  sj^stem — your  in 
rem  system— if  the  tax  goes  against  the  person?  The  property 
measures  the  liability  of  the  person.  The  State  does  not  con- 
fine itself  to  selling  the  thing  upon  which  the  tax  is  assessed; 
it  makes  the  tax  a  lien,  and  a  judgment,  covering  every  par- 
ticle of  property  a  citizen  may  have,  subjecting  it  to  execution. 
It  is  a  debt  which  the  citizen  owes  the  State — which  the  State 
ma}'  enforce  in  its  own  time  and  manner. 

Well,  now,  if  you  keep  this  idea  in  view,  these  nice  re- 
fined distinctions  disappear.  The  State  aims  at  the  person,  and 
the  property  in  his  hands;  at  ever}'  man,  without  regard  to 
any  other  man.  The  property  of  one  man  is  not  to  be 
discharged  from  taxation  because  the  property  of  another  man 
is  reached  and  taxed.  That  is  the  whole  of  this  theory;  the 
whole  argument  comes  to  that,  if  j'ou  carr}^  it  out.  What  is  the 
provision  of  our  law  as  to  lands?  The  system  of  taxation  in  this 
State  has  no  existence,  except  in  reference  to  owners.  In  land, 
we  tax  the  owner;  if  we  cannot  find  him  we  tax  the  occupant; 
if  we  find  neither  owner  nor  occupant,  we  tax  it  to  an  unknown 
owner.  When  we  come  to  personal  property,  we  tax  the 
owner;  if  we  cannot  find  him,  we  tax  the  party  in  possession, 
or  we  tax  the  agent,  or  the  party  having  the  control  of  the 
property.  The  property  is  simply  made  to  measure  the  liability 
of  the  person.     Now,  this  runs  through  our  whole  revenue  sys- 


[     36     ] 

tern.  It  aims  at  every  person,  at  everything  that 'can  be  found 
in  the  hands  of  the  person — the  money  loaned,  whether 
secured  by  mortgage  or  not,  in  the  hands  of  the  hohJer  of  the 
debt  in  whom  it  is  property,  a  value,  and  not  the  same  value, 
that  is  in  the  hands  of  the  land  owner. 

I  will  read  a  few  pages  from  the  ease  of  The  Exchange  Bank 
of  Columbus  V.  Hlnes  (Third  Ohio  State  Keports,  p.  2t!),  which 
states  the  argument  stronger  than  I  can  make  it,  on  this  ques- 
tion of  double  taxation.  The  doctrine  of  the  counsel  Ignores 
the  whole  of  the  operations  of  commerce,  of  barter,  of  busi- 
ness— the  very  doctrine  upon  which  the  creation  of  property 
depends,  and  upon  which  all  our  State  Governments  have  acted 
ever  since  they  were  organized. 

"  It  is  alleged"  (say  the  Court,  in  tl'e  case  cited),  "  that  the 
taxation  of  credits  results  in  a  double  taxation;  that  a  credit  is 
the  mere  representative,  the  mere  shadow  of  the  property  in 
possession,  which  it  requires  in  payment" — (which  is  precisely 
Mr.  Felton's  argument,  though  not  so  eloquently  put) — "and 
that  to  tax  both  the  credit,  and  the  property  which  it  is  said  to 
represent,  is  double  taxation.  This  is  a  fallacy.  The  value  of 
a  credit  is  not  identical  with  the  property  which  it  would 
require  to  discharge  it;  but  its  value  consists  in  the  right  of  the 
creditor  to  require  payment,  and  the  obligation  and  ability  of 
the  debtor  to  pay.  A  valid  credit  against  a  responsible  person, 
therefore,  is  not  a  mere  shadow,  but  property  possessing  intrin- 
sic value  within  itself.  A.  sells  his  farm  to  B.  at  the  price  of 
ten  thousand  dollars,  and  takes  B.'s  notes  for  the  amount,  with 
a  mortgage  on  the  farm  for  security.  B.  will  pay  a  tax  on  the 
full  value  of  the  farm,  without  deduction,  and  A.  will  be  very 
properly  required  to  pay  a  tax  on  the  full  value  of  the  credits 
against  B.,  which  he  may  choose  to  hold  for  many  years,  being 
paid  interest  thereon."  That  the  counsel  lost  sight  of.  "  The 
credits  which  A.  holds  are  profitable,  valuable  of  themselves, 
transferable  at  any  time  in  exchange  for  other  proj)erty,  and 
the  means  with  which  they  may  be  ultimately  paid  may  be 
acquired  by  B.  many  years  after  the  notes  are  given.  These 
credits,  therefore,  are  not  mere  shadows;  are  not  substantially 
identical  with  the  property  in  which  they  are  payable,  or  with 


[     37     ] 

which  they  maj^  be  ultimately  paid;  but  they  are  valuable,  and 
possess  the  inherent  elements  of  property.  Again,  C.  sells  to 
D.  a  stock  of  goods  of  the  value'  of  ten  thousand  dollars,  and 
takes  D.'s  notes  for  the  amount.  D.  will  be  taxed  upon  the  full 
value  of  the  goods,  and  C.  upon  the  full  value  of  the  notes. 
And,  again,  E.  has  ten  thousand  dollars  in  money,  which  he 
delivers  over,  on  general  deposit,  to  F.,  a  banker,  and  takes  a 
certificate  of  deposit  therefor.  E.  will  be  taxed  on  the  credit 
evidenced  by  the  certificate  of  deposit,  and  F.  will  be  taxed  on 
the  money  which,  by  the  deposit,  passed  absolutely  to  his  do- 
minion, and  became  his  projDcrty,  to  use  and  control  for  his  own 
purposes.  Here,  F.  is  not  the  holder  of  E.'s  money,  but  stands 
indebted  to  E.  for  the  amount  of  the  money  which  passed  and 
hecame  F.'s  property.  It  is  well  settled  that  the  right  of  prop- 
erty follows  the  dominion  over  it,  and  that  in  all  cases  of  a 
mutuum  or  deposit,  where  -the  mutuary  or  depositary  has  the 
option  to  return  either  the  same  identical  article  or  the  same 
amount  in  kind,  the  right  of  property  passes  with  the  control 
over  it,  and  the  mutuary  or  depositary  is  indebted  to  the  lender 
or  depositor  for  the  amount."  Citing  Chase  v.  Wdshburn,  1  O. 
S.  Eep.,  p.  24i. 

This  case  contains  the  full  argument  upon  almost  all  the 
questions  argued  here.  It  does  seem  to  me  that  whenever  you 
admit  that  these  accounts  are  property  and  must  be  taxed,  you 
admit  away  the  whole  question,  and  then  the  duty  of  taxation 
follows. 

I  am  utterly  unable  to  see  the  force  of  the  argument  resorted 
to  here  to  show  that  the  State  does  not  seek  the  owner,  and 
does  not  tax  every  man's  property  in  his  hands,  irrespective  of 
every  other  man's.  It  seems  to  me  that  that  is  exactly  what 
the  State  does  do;  it  does  tax  every  man's  property,  irrespec- 
tive of  every  other  man's.  It  is  not  true,  by  any  manner  of 
means,  that  the  State  taxes  objects,  in  absolute  disregard  of 
owners.  It  does  the  very  reverse.  How,  then,  does  it  ap- 
pear that  there  is  any  double  taxation?  It  appears  by  the 
assertion  of  the  counsel,  but  it  does  not  appear  in  any  other 
way.  It  is  perfectly  manifest  that  here  are  separate  and  dis- 
tinct items  of  property;  but,  says  the  counsel,  "the  inexorable 

Jlli902 


[     S8     ] 

law  of  trade  forces  the  borrower  to  pay  all  the  taxes."  Now, 
I  do  not  quarrel  with  that  law  of  trade,  but  I  do  object  that  it 
shall  be  visited  upon  the  State,  and  I  do  deny  that  this  Court 
has  the  power  to  relieve  against  it,  or  to  shift  the  responsibility 
in  any  way. 

ILLUSTRATIONS — CONCLUSION. 

Then  the  counsel,  in  order  to  show  the  exceeding  gratifica- 
tion felt  all  over  the  State  when  it  was  known  that  the  Supreme 
Court  had  determined  that  there  could  be  no  taxation  upon 
credits,  money  loaned,  and  mortgages,  told  us  a  pathetic  story 
of  how  he  happened  in  a  Clay  street  bank  when  a  poor  woman — • 
he  did  not  say  that  she  was  a  widow,  but  I  suppose  she  was — 

Mr.  Felton  [interrupting] — I  will  give  j'ou  her  address,  if  you 
want  it. 

Mr.  Hoge  [continuing] — I  do  not  want  it.  — Came  there  to 
receive  back  the  tax  which  this  inexorable  law  had  exacted 
from  her.  He  did  not  tell  us  whether  she  got  that  tax  back. 
I  do  not  believe  she  did.  If  I  have  any  knowledge  of  the  dis- 
tinguished financier  who  presides  over  that  institution,  I  do  not 
think  he  paid  that  money  back.  I  do  not  think  he  will  ever  let 
his  grasp  go  until  there  is  a  final  decision  from  which  there  is 
no  escape.  The  sympathy  was  beautiful.  It  is  singular,  how- 
ever, that  it  didn't  operate  upon  the  authorities  of  that  institu- 
tion when  they  required  of  the  poor  woman  who  wanted  to 
borrow  seven  hundred  and  fifty  dollars  to  protect  her  home- 
stead, this  iron-clad  mortgage  which  compelled  her  to  pay  not 
only  her  own  tax,  but  the  taxes  of  the  bank  also;  which  com- 
pelled her,  in  order  to  save  harmless  this  sympathetic  institu- 
tion against  all  possibility  of  loss,  even  to  bind  herself,  if  the 
bank  should  determine  to  close  down  upon  her  and  sell  her 
homestead,  to  pay  the  counsel  of  the  bank  for  obtaining  the 
judgment  which  should  drive  her  and  her  children  out  from 
under  the  protection  of  her  own  roof.  It  seems  to  me  that 
there  is  where  the  sympathy  ought  to  have  come  in.  It  re- 
minded me  of  a  story  told  by  a  friend  who  went  to  visit  a  very 
rich  man,  who  counted  his  funds  by  the  millions.  While  he 
was  at  the  rich  man's  place  of  business  a  widow  woman  came 


[     39     ] 

in,  and  said:  "Mr. ,  I  want  to  see  you  on  a  little  matter  of 

business.  M}'^  husband  often  told  he  was  very  well  acquainted 
with  you,  and  that  you  were  a  good  friend  to  him;  so  I  thought 
I  would  come  to  you  in  my  distress,  and  see  if  I  could  get 
some  relief."  "Oh,  yes,  I  knew  j'our  husband;  he  was  one  of 
my  best  friends.  What  can  I  do  for  you?"  "  I  am  in  a  little 
trouble;  there  is  a  mortgage  on  my  homestead  across  the  Bay, 
and  a  creditor  is  going  to  foreclose  me  out.  I  thought  I'would 
come  here,  as  you  were  a  good  friend  to  my  husband,  and  see  if 
you  woukl  not  lend  me  the  money  and  take  a  mortgage  on  my 
property,  in  order  to  save  my  homestead  until  I  can  get  time 
to  turn  around  and  find  some  way  out  of  my  difficulty."  "  Oh," 
said  the  rich  man,  the  sympathy  beginning  to  operate  the  other 
way,  "I  have  not  got  an}'  money  at  all;  I  have  not  got  a  cent; 
I  am  overdrawn  at  the  bank;  I  cannot  do  anything;"  and  turn- 
ing to  my  friend,  he  said:  "Cannot  you  raise  this  money?"  "Yes," 
replied  my  informant;  "  it  won't  take  me  an  hour  to  do  it."  "Ah! 
that's  right,"  said  the  rich  man ;  "here  is  a  chance  to  help  this  poor 
woman,  and  do  a  great  deal  of  good."  "Now,"  said  my  friend, 
"you  just  take  my  note  and  indorse  it,  and  I  will  step  out, 
get  the  money,  and  be  back  in  less  than  an  hour."  "  Oh,"  says 
the  man  of  money,  his  countenance  falling  again,  "I  cannot  do 
that;  I  am  bound  not  to  indorse."  And  so  the  woman  went 
out,  with  an  abundance  of  sympathy,  but  without  help.  The 
millionaire  turned  to  his  clerk  and  said:  "John,  give  me  a 
statement  of  ray  accounts."  John  looked  over  the  books  a 
moment,  and  replied:  "Sir,  3'our  balance  to-day  is  thirty-five 
thousand  dollars."  What  was  the  character  of  that  million- 
aire's sympathy? 

May  it  please  the  Court,  I  am  very  sorry  that  I  have  not  got 
an  orphan  here  to  offset  that  poor  woman.  It  seems  to  me, 
that  sjnnpathy  would  have  better  manifested  itself  in  declining 
to  enforce  that  inexorable  law  of  trade  which  compelled  the 
bank  to  put  all  these  charges  upon  these  depositors  and  to 
make  them  pay  the  taxes  of  the  bank.  I  earnestly  hope  and 
trust  that  there  will  be  some  provision  of  law  adopted  soon 
which  Avill  relieve  us,  and  the  borrowers  of  the  country,  from 
some  portion  of  this  inexorable  law  of  trade. 

I  do  not  propose  to  go  into  any  authorities  upon  these  ques- 


[     40     ] 

tions  which  I  have  hecu  discussing  to  any  extent  at  all.  It  has 
not  only,  as  I  conceive,  been  determined  and  definitel}^  settled 
by  the  legislative  history  and  practice  of  the  State,  but  it  has 
been  established  by  the  judicial  decisions  of  this  State,  from  the 
very  first  time  the  question  was  ever  presented.  I  have  here  a 
list  of  nine  distinct,  deliberate  opinions  of  the  Supreme  Court 
of  this  State  establishing  the  constitutionality  of  such  taxation; 
and,  to  cap  all,  when  the  State,  by  legislative  action,  undertook 
to  relieve  this  species  of  property,  this  Court  determined  its 
solemn  Act  to  be  unconstitutional  and  void.  I  have  found  no 
case  anj^where  that  does  not  recognize  the  same  doctrine;  that 
does  not  apply  the  same  ijrinciples.  So  far  as  it  depends  upon 
legislative  history  and  practice — upon  legislative  authoi'ity, 
upon  adjudications  of  Courts — there  has  never  been  but  one 
way,  until  the  decision  of  these  cases. 

The  question  is  now  presented  for  a  final  determination. 
This  Court  is  asked  to  interfere,  by  injunction,  to  stop  the  op- 
erations of  the  officers  of  the  State;  to  cripple  by  literal,  verbal 
construction  the  great  powers  of  a  State  Governmoit;  to  inter- 
fere with  its  acts;  to  so  hamper  it  as  to  render  it  unable  to 
carry  out  the  constitutional  provisions  which  require  it,  in  the 
exercise  of  its  governmental  powers,  to  protect  all,  to  equally 
tax  all.  I  would  not  give  a  straw  for  the  other  powers  of  the 
State  Government,  upon  the  subject  of  taxation,  if  the  doc- 
trines which  are  contended  for  here  are  to  be  established  by  a 
final  adjudication.  How  are  we  to  know  that  this  will  be  a 
final  decision,  if  the  Court  overturns  its  former  decisions?  We 
will  thereby  be  given  to  understand  that  no  series  of  adjudica- 
tions, no  number  of  decisions,  shall  have  the  weight  of  a  feather 
even  upon  the  tribunal  that  pronounces  theui,  nor  upon  the 
people  that  submit  to  them.  It  will  be  to  announce  that  the 
questions  once  decided  shall  be  considered  always  open,  never 
closed,  to  those  who  come  after  you.  If  you  now  make  a  deci- 
sion, reversing  the  former  cases,  yoii  may  consider  it  final,  but, 
at  the  same  time,  your  example  will  be  an  inducement  to  your 
successors  to  disregard  it.  The  main  thing  is  to  be  right.  But 
how  and  when,  under  such  a  practice,  you  can  ever  get  to  be 
right,  no  mortal  man  can  say.  You  will  certainly  be  no  nearer 
pronouncing  excathedra  and  finally  what  is  right,  if  you  shall 


[    41     ] 

now  overturn  all  the  decisions  and  practice,  legislative  and  ju- 
dicial, of  the  State,  and  take  a  new  departure;  make  a  new  deci- 
sion which  shall  cripple  the  constitutional  power  of  the  Gov- 
ernment. Your  successors,  the  people,  everybody,  will  be  at 
libert}'  at  all  times,  upon  all  occasions^and  in  all  cases,  to  treat 
your  decisions  as  brutem  fulmen — having  no  force,  no  authority, 
no  conclusion. 


ILLEGAL    TAX    TO   BE   REFUNDED. 

[The  following  are  extracts  from  the  oral  argument  of  Mr. 
HoGE,  at  the  first  hearing  of  this  cause,  at  Sacramento,  April 
fourteenth,  eighteen  hundred  and  seventy-three,  upon  points 
liot  discussed  in  the  second  argument.] 

J.  B.  Felton,  Esq.,  having  concluded  the  argument  on  behalf 
of  respondents,  Mr.  Hoge  said: 

May  it  please  the  Court:  It  is  now  my  duty,  on  the  part 
of  the  appellant,  to  close  this  argument.  Undoubtedly  the 
questions  presented  here  are  important.  But,  in  my  judgment, 
they  are  important,  not  so  much  because  of  any  very  great 
ditficulty  in  their  solution,  as  of  the  character  of  the  questions, 
involving,  as  they  do,  the  constitutional  powers  of  the  Legisla- 
ture. Such  questions  always  are  important.  In  these  cases 
they  are  still  more  important,  for  the  reason,  that  they  involve 
the  validity  of  the  entire  tax  levy  for  the  twenty-fourth  fiscal 
year.  If  the  positions  assumed  by  counsel  on  the  other  side  are 
to  be  sustained  by  this  Court,  I  do  not  see  but  that  the  conse- 
quence will  be  to  stop  the  operations  of  the  Government  for  one 
or  two  years,  or  else  to  require  the  calling  of  a  si^ecial  session 
of  the  Legislature  for  the  purpose  of  remedying  the  difficulty. 
To  be  sure,  it  is  very  kindly  intimated  in  the  complaints  in 
these  cases — at  any  rate,  in  the  San  Francisco  cases — that  certain 
citizens  of  the  State,  who  decline  from  some  cause  or  other  to 
avail  themselves  of  any  constitutional  quibbles,  have  paid  their 
taxes  according  to  the  provisions  of  the  law,  and  placed  a  suf- 


[     42     ] 

ficient  fund — or  a  large  fund — in  the  State  Treasury;  amount- 
ing, according  to  Mr.  Patterson's  figures — which,  I  presume, 
are  correct — to  something  over  two  millions  of  dollars.  I  sup- 
pose it  is  intended  to  argue,  from  that  fact,  that  the  State  Gov- 
ernment will  have  enough  money  to  get  along  anyhow;  and, 
therefore,  these  contesting  parties  should  be  let  oif  without 
paying  anything;  and  they  should  be  permitted  to  avail  them- 
selves of  their  constitutional  objections  and  escape  taxation 
altogether.  If  this  were  so,  I  do  not  see  what  becomes  of  those 
questions  of  equality  and  uniformity  which  the  Constitution  of 
the  State  seems  to  lay  so  much  stress  upon — the  great  object 
which  it  aims  to  secure — and  about  M^hich  gentlemen  on  the 
other  side  have  talked  so  much.  I  do  not  see  what  becomes  of 
that  principle  of  the  Constitution.  If  the  learned  gentlemen 
are  successful  in  their  constitutional  objections,  and  succeed  in 
having  the  tax  levy  declared  invalid,  what  would  the  State  be 
required  to  do  with  reference  to  those  citizens  who  have  paid 
already?  They  will  be  in  the  condition  of  citizens  who  have 
paid  an  illegal  and  unconstitutional  tax,  and  with  what  justice 
can  the  State  retain  their  money?  Can  the  State  stand  by  tech- 
nical objections?  Will  it  say  to  the  taxpayers,  "You  have 
paid  your  tax  into  the  treasurj^,  and  now  that  we  have  got  the 
money  we  will  give  you  no  relief?"  That  would  be  unworthy 
of  the  Government.  Justice  and  fairness  would  demand  that 
the  money  be  returned  to  the  citizens  who  paid  it,  as  so  much 
money  illegally  and  unconstitutionally  exacted  from  them. 

On  this  subject  the  learned  Judges  of  the  Supreme  Court  of 
Ohio,  when  deciding  an  important  case  of  this  character, 
which  is  reported  in  the  Third  Ohio  Eeports,  seemed  to  be 
strongly  impressed.  They  were  discussing  the  policy  and  pro- 
priety of  a  Court  of  equity,  by  injunction,  stopping  the  opera- 
tions of  a  Govei'nment  and  determining  an  entire  tax  levy  of 
the  State  to  be  void.  I  will  read  a  few  sentences  from  pages 
thirty-four  and  thirty-five  of  that  volume.  Chief  Justice  Bartly 
says: 

"The  question  arises  here,  whether  the  unconstitutionality 
of  this  tenth  section  of  the  law  invalidates  the  assessment  of 
taxes,  which  is  the  subject  matter  of  complaint  in  this  case.     If 


[     43     ] 

this  assessment  upon  the  plaintiff's  property  be  void  upon  this 
ground,  the  whole  assessment  throughout  the  State  for  the 
year  eighteen  hundred  and  fifty-two  must  be  void  on  the  same 
ground,  and  if  those  who  have  resisted  its  paj^ment  be  entitled 
to  be  relieved  from  the  assessment,  those  who  have  already 
paid,  should,  in  justice,  have  the  amount  reimbursed  to  them  by 
the  State;  and  no  revenue  for  that  year  could  justly  and  legally 
have  been  paid  into  the  public  treasury." 

So  the  Court  will  see  it  is  no  new  idea  which  I  suggest  as 
one  of  the  consequences  which  is  to  follow  this  equitable  attack 
upon  the  power  of  taxation — the  power  of  raising  revenue  for 
a  State  government.     That  is  not  all. 

DUTY    OF   CITIZENS    TO    PAY   TAXES. 

Several  of  the  learned  gentlemen,  in  the  course  of  their  argu- 
ments, contended  that  whether  the  State  has  levied  too  much 
or  too  little,  the  same  fatal  result  follows.  And  long  argu- 
ments, and  figures  and  calculations  are  indulged  in  for  the  pur- 
pose of  showing  that  the  tax  levy  is  either  too  much  or  too 
little,  and  to  maintain  that  the  entire  tax  levy  is  void.  Now, 
then,  if  this  tax  levy,  which  the  State  has  jilaced  upon  the  tax- 
payers, is  too  little,  I  am  unable  to  see  how  these  parties  are 
injured.  I  am  unable  to  see  how,  when  taxes  are  levied  regu- 
larly, they  are  rendered  irregular  and  void  because  they  do  not 
go  far  enough,  and  do  not  fix  a  burden  upon  the  people  which 
might  have  been  legally  imposed  upon  them.  1  do  not  under- 
stand that  a  party  would  be  entitled  to  come  into  a  Court  and 
get  relief,  upon  the  ground  that  he  had  been  taxed  too  little. 
That  would  be  a  new  argument,  never  yet  advanced  in  a  Court 
of  equity. 

But,  ma}"  it  please  your  Honors,  that  is  not  the  question. 
These  banks  and  these  parties,  who  have  resorted  to  the  strong 
arm  of  the  law  for  the  purpose  of  relieving  themselves  of  the 
tax  levy,  do  not  desire  to  pay  any  taxes.  They  have  paid 
nothing.  They  have  not  even  paid  their  real  estate  tax,  the 
legality  of  which  nobody  can  question,  nor  have  they  offered  to 
pay  any  portion  of  the  tax,  which  is  distinct  from  that  which 
they  contend  to  be  illegal.     I  think  they  fall  in  another  cate- 


[     44     ] 

gory.  I  think  they  come  within  the  class  of  people  described 
hy  the  Suj^renie  Court  of  Wisconsin,  in  a  case  of  this  character. 
I  will  read  a  little  from  the  opinion  in  this  case,  for  the  purpose 
of  expressing  what  1  think  in  better  terms  than  I  can  m3'self. 
I  refer  to  the  case  of  Warden  v.  The  Board  of  Supervisors  of 
Fond  du  Lac  County,  which  is  reported  in  the  14th  Wisconsin 
Iiej)ortSj  at  page  618.     The  Court,  by  Chief  Justice  Dixon,  say: 

"It  appears  on  the  face  of  the  complaint,  as  well  as  by  the 
proofs  adduced,  that  the  sum  demanded  for  taxes  is  not  only 
justly  and  equitably  due  upon  the  land,  but  that  it  is  in  point  of 
fact  less  tlian  it  would  have  been  if  the  strict  legal  course  con- 
tended for  by  counsel  had  been  pursued.     In  addition  to  this, 
the  plaintiffs  were  not  called  upon  to  pay  it  until  a  year  after  it 
had    been    in    the    public    treasuiy.      The    i:)ayment    of   taxes 
equitably  and  fairly  assessed  is  a  duty  which  every  man  is  under 
the   strongest  legal  obligation  to  perform   to  the  Government 
which  affords  him  jDrotection  in  his  person  and  property.     Gov- 
ernments cannot  exist  without  their  revenues,  and  taxes  are 
levied  and  contributions  enforced  upon  the  principle  that  the}' 
are  but  just  returns  for  the  protection  and  advantages  derived 
from  them.     In  this  sense  a  proper  tax — one  which  is  just  and 
correct  in  ])riuciple — is  a  debt  due  to  the  Government  which  the 
owner  of  property  has  no  more  right  in  equity  and  conscience 
to  withhold,  than  the  most  sacred  debt  of  a  private  nature.     It 
is,  indeed,  when   seen  in  the  light   of  reason  and  justice,  far 
more    sacred    and  obligatory,  inasmuch   as  the   considerations 
whence  it  proceeds  are  the  highest  and  most  inestimable  rights 
and  privileges  enjoyed  by  the  citizen.     T'o  withhold  it,  then,  is 
a  public  wrong  which  affects  the  whole  community,  and  which 
cannot  be  justified  or  excused  by  any  rule  of  equity  or  sound 
morality.     This  may  be  contray  to  popular  notions,  but  it  is  the 
just  and  enlightened  view  of  a  Court  of  equity,  which  never 
moves  except  to  prevent  fraud  and  injustice,  and  where  the 
relief  asked  conforms  to  the  principles  of  rectitude  and  honest3\ 
It  is  very  well  known  that  there    are  many  persons   whose 
moral  perceptions  are  so  obscure  and  confused,  and  whose  sel- 
fishness is  so  great,  that  they  seem  to  regard  almost  any  means 
by  which    the    revenues   of   the    State    may  be   defrauded,    or 


[     45     ] 

moneys  in  the  public  treasury  got  out,  as  upright  and  honor- 
able. One  might  suppose  from  their  conduct  that  they  con- 
sidered such  practices  the  highest  evidence  of  public  virtue  and 
patriotism.  Unfortunately  for  such  projects,  Courts  of  equity 
take  a  different  view,  and  that  branch  at  least  of  the  Govern- 
ment against  whose  success  and  prosperity  they  are  aimed  will, 
if  applied  to,  promptly  refuse  its  aid.  The  collection  of  a  tax 
under  the  statute  is  a  legal  proceeding  to  enforce  the  payment 
of  a  debt  due  the  public,  and,  like  proceedings  of  law  upon  a 
private  claim,  equity  will  only  interfere  to  prevent  injustice  by 
the  unfair  use  of  the  process  of  the  law.  The  primary  and  eon- 
trolling  principle  in  such  cases  is  that  the  proceedings  to  be 
stated  are  inequitable  and  unjust,  and  that  it  will  be  against  con- 
science to  allow  them  to  go  on.  (^Stokes  v.  Kuarr,  11  Wisconsin,  p. 
389;  Ablemanv.Roth,  12  Wisconsin,  p.  91.)  It  will  not  be  enough  to 
show  that  they  are  irregular  or  even  void.  Courts  of  equity  do 
not  sit  to  reverse  or  correct  errors  and  mistakes  of  law.  To  be 
entitled  to  their  assistance,  the  party  applying  must  show  that 
he  is  in  danger  of  unjustly  losing  a  substantial  right,  and  that 
he  is  in  no  fault." 

May  it  please  your  Honors,  when  money  is  to  be  got  out  of 
the  treasury  we  do  not  hear  much  about  constitutions  and  laws, 
but  when  the  Government  for  its  purposes  seeks  to  raise  by 
taxation  from  its  people  that  which  will  support  it  and  carry  on 
its  operations,  enabling  it  to  protect  its  citizens,  then  these 
worthy  fellows  who  dislike  to  \)ay  taxes  are  immediately  seized 
with  constitutional  scruples.  It  becomes  their  constitutional 
duty  then  to  resist  the  collection  of  the  taxes  upon  any  quibble 
which  the  proverbial  ingenuity  of  the  American  people  are  wont 
to  exercise  to  avoid  the  payment  of  money. 

These  remarks  are  exceedingly  applicable,  in  my  judgment, 
to  the  grounds  assumed  in  the  course  of  these  various  argu- 
ments. I  do  not  projjose  to  discuss  all  the  questions  which  have 
been  presented  here.  I  shall  not  undertake  to  read  the  author- 
ities upon,  or  discuss  the  question  whether  a  Court  of  equity 
will  interfere  in  a  case  where  the  legislative  Act  complained  of 
is  void;  or  the  question  as  to  the  extent  and  mode  of  relief 
against  illegal  taxation;  whether  a  Court  of  equity  will  consent 


[     'IG     ] 

to  interfere  when  a  part  of  tbe  tax  is  properly  levied,  and  such 
portion  has  not  been  paid;  or,  whether  a  Court  of  equity  can  go 
behind  the  action  of  the  Board  of  Equalization  and  inquire  into 
the  motives  which  actuated  the  members — a  Board  established 
by  law  and  vested  with  peculiar  powers.  These,  and  various 
other  questions  which  arise,  I  shall  not  discuss;  at  least  at  any 
length.  I  ma}^,  incidentally,  notice  some  of  them.  All  these 
points  are  noted  in  the  briefs,  and  the  authorities  pertaining  to 
them  are  there  cited.  I  shall  confine  myself,  mainly,  to  the 
constitutional  objections  which  have  been  discussed  by  counsel. 

[Mr.  IIoQE  proceeded  to  argue  that  the  revenue  portions  of 
the  Code  were  intended  by  the  Legislature  to  be  general  in 
their  application,  and  thus  to  supersede  the  Consolidation  Act 
of  San  Francisco.  Upon  the  second  argument  the  Court  de- 
clined to  hear  further  argument  on  the  subject,  being  satisfied, 
with  their  opinion  on  that  point  as  already  given,  sustaining  Mr. 
Hoge's  view.] 

THE   ACT    AUTHORIZING   STATE   CAPITOL   BONDS. 

1  propose  to  take  up,  next,  the  point  presented  by  counsel  on 
the  other  side:  that  this  tax  levy  is  void  because  it  includes  a 
tax  under  an  unconstitutional  Act.  It  is  argued  that  the  Act  of 
eighteen  hundred  and  seventy-two,  authorizing  the  issue  of  two 
hundred  and  fifty  thousand  dollars  in  bonds  for  the  State  Capi- 
tol is  unconstitutional,  for  the  reason  that  the  State  debt  at  the 
time  it  was  passed  exceeded  three  hundred  thousand  dollars; 
and  this  Act  was  not  submitted  to  a  vote  of  the  people,  as  re- 
quired by  Article  VIII  of  the  State  Constitution;  and,  also,  for 
the  reason  that  it  makes,  or  attempts  to  make,  an  appropriation 
for  a  longer  term  than  two  years.  My  first  answer  to  this  ob- 
jection is,  that  no  such  question  can  arise  in  this  case.  There 
is  nothing  in  the  record  about  it;  nothing  to  show  that  the 
debt  exceeds  three  hundred  thousand  dollars,  nor  that  the  Act 
has  not  been  submitted  to  the  people. 

But  whether  this  be  so  or  not,  I  do  not  think  the  question  is 
an  open  one  in  this  Court.  I  think  it  was  disposed  of,  finally 
and  effectually,  in  the  case  of  The  People  v.  Pacheco,  27  Cal.,  p. 
203.     There,  the  Court  had  under  consideration  an  Act  of  the 


[     47     ] 

Legislature  which  undertook  to  appropriate  for  the  pajnnent  of 
the  interest  on  the  bonds  authorized  to  be  issued  to  the  Central 
Pacific  Railroad  Company,  a  large  amount  of  money— a  hun- 
dred and  five  thousand  dollars  annually — for  a  long  term  of 
years.  After  elaborate  argument,  the  Court  decided  that  the 
Act  did  not  create  a  debt  within  the  meaning  of  the  Constitu- 
tion; that  it  provided  a  fund  for  its  own  liquidation,  and,  there- 
fore, was  not  in  conflict  with  Article  VIII  of  the  Constitution. 
I  consider  that  case  conclusive  of  this  point,  for  this  Act  pro- 
vides for  a  fund  to  liquidate  the  bonds  authorized  to  be  issued 
by  it,  as  much  so  as  the  Act  then  before  the  Court. 

But  Mr.  Patterson  contends  that  the  Act  must  be  held  void, 
because  it  attempts  to  make  an  appropriation  for  a  period 
longer  than  two  3'ears,  thereby  coming  within  the  constitu- 
tional restriction.  I  answer,  that  this  does  not  make  an  appro- 
priation at  all,  but  merely  levies  a  tax,  and  so  far  as  it  is  before 
this  Court  at  all  upon  the  record  here,  it  levies  a  tax  for  two 
years  only — for  the  twenty-fourth  and  twenty-fifth  fiscal 
years — for  the  purpose  of  paj'ing  the  interest  and  accumula- 
ting a  fund  with  which  to  pay  the  amount  of  the  bonds. 
There  is  no  appropriation  in  it  like  that  in  the  Act  before  the 
Court  in  the  27th  Cal.  It  is  a  simple  direction  to  levy  a  tax  of 
a  certain  amount,  to  raise  a  fund  to  pay  the  interest  upon  these 
Capitol  bonds,  and  to  liquidate  the  principal.  That  is  the  whole 
of  the  Act.  So  far  as  it  is  before  this  Court,  it  is  a  direction  to 
levy  a  tax  for  two  j-ears,  and  for  two  years  only,  under  the 
Political  Code.  What  the  Legislature  may  think  proper  to  do 
with  the  fund  after  it  is  raised  and  put  into  the  treasuiy,  is 
something  the  judiciary  has  nothing  to  do  with.  The  Legisla- 
ture has  the  entire  control  of  that  nlatter. 

But  ther'e  is  still  another  answer  to  this  argument.  This  Act 
was  only  passed  in  eighteen  hundred  and  seventy-two,  and  a 
levy  under  it  is  good  for  two  years,  anyhow.  The  appropria- 
tion is  good  for  that  long  a  time  in  any  event,  even  if  the  Act 
does  attempt  to  make  an  appropriation  for  more  than  two 
years.  The  same  point  came  up  in  Illinois,  and  is  reported  in 
the  43d  Illinois  Eeports,  page  456.  The  Court  there  held,  that 
where  a  township  was  authorized  to  levy  a  tax  of  three  per 
cent,  and  levied  a  tax  of  five  per  cent,  the  levy  was  not  void, 


[     48     ] 

but  was  good  for  the  tlireo  per  cent.     I  do  not  wish,  therefore, 
to  consume  further  time  on  that  point. 

CONSTITUTIONALITY   OF   THE   STAJ^E   BOARD    OP   EQUALIZATION. 

The  counsel  on  the  other  side  rely  chiefly,  it  seems,  upon  the 
point,  that  the  Legislature  could  not  authorize  the  appointment 
of  a  State  Board  of  Equalization  and  clothe  its  members  with  the 
powers  which  this  Board  has  exercised.  Now,  this  Board  was 
originally  established  by  the  Act  of  April  fourth,  eighteen  hun- 
dred and  seventy.  I  do  not  know  that  this  Act  has  ever  been 
repealed;  I  think  its  provisions  have  been  substantially  incorpo- 
rated in  the  Political  Code,  and  so  continue  the  law.  The 
seventh  section  of  the  original  Act  (Stats.  1869-70,  page  714) 
provides  what  the  duties  of  the  Board  shall  be  in  reference  to 
the  mode  and  manner  in  which  the  Assessors  and  Collectors 
perform  their  duty.  Sections  eight,  nine,  ten,  eleven,  twelve, 
and  thirteen,  prescribe  other  duties  of  the  Board.  [Eeads  the 
sections  rei'cri-ed  to.]  These  provisions  show  that  it  was  the 
purpose  and  design  of  the  Legislature,  in  establishing  the  State 
Board  of  Equalization,  to  obey  the  injunctions  of  the  Con- 
stitution, to  secure  equality  and  uniformity  in  the  taxation  of 
jsroperty  throughout  the  State.  Now,  I  suppose  it  cannot  be 
disputed,  that  the  power  of  taxation  is  unlimited  in  the  Legis- 
lature as  to  the  objects  and  purposes  and  amounts.  The  wisdom 
or  justice  of  the  law  imposing  a  tax  is  not  a. subject  for  judi- 
cial inquiry;  nor  is  the  j^urpose  for  which  the  Legislature  in- 
tends to-apply  the  funds  raised  by  taxation  a  subject  of  inquiry. 
There  is  no  power  that  can  review  the  action  of  the  Legisla- 
ture upon  questions  of  this  character.  It  is  too  late  to  ques- 
tion tlie  power  of  the  Legislature  upon  this  subject  in  this 
State,  for  it  has  been  conclusively  determined  in  'Blanding  v. 
Burr\  13  Cal.,  p.  343,  and  in  half  a  dozen  other  cases  since.  The 
power  of  the  Legislature,  in  regard  to  taxation,  is  limited  only 
by  the  restriction,  that  it  shall  be  equal  and  uniform;  and  there 
is  no  tribunal  which  can  review,  reverse,  or  control  it.  How 
that  equality  and  uniformity  shall  be  produced  or  secured  the 
Constitution  is  silent.  The  means  to  be  used  for  that  purpose, 
the  mode  and  manner  of  securing  it,  is  left  to  the  Legislature. 
The  Constitution  simply  determines  or  lays  dov/n  the  general 


[     49     ] 

priDciple,  that  all  propertj'  shall  be  taxed  in  this  State,  that  it 
shall  be  taxed  equally  and  uniformly,  in  the  manner  prescribed 
by  the  Legislature,  and  that  Assessors  and  Collectors  of  taxes 
shall  be  elected  by  the  people  of  the  distinct  in  which  the  taxes 
are  collected.  The  idea  which  the  learned  counsel  advances, 
that  the  use  of  the  term  "Assessor"  in  the  Constitution  car- 
ries with  it  a  whole  volume  of  constitutional  law  and  constitu- 
tional limitation,  that  ex  vi  termini  the  sovereign  power  of  the 
Legislature  over  the  subject  of  taxation  was  emasculated,  is 
something  new  to  me. 

Mr.  Felton — My  proposition  was  that  the  word  Assessor,  as 
used  in  the  Constitution,  means  the  person  who  fixes  the  value 
of  the  property  for  the  purposes  of  taxation — fixes  it  finally. 

Mr.  HoGE — The  language  used,  as  I  understood  it,  was  that 
the  word  Assessor  ex  vi  termini  restricted  the  valuation  of  the 
propert}^  to  the  man  elected  to  assess  the  property  in  the  local 
district  where  the  property  was  situated.  I  say  the  practice  of 
our  State  government  is  opposed  to  the  idea,  and  that  the  other 
provisions  of  the  Constitution  are  opposed  to  it.  I  contend  that 
the  harmony  of  the  Constitution  and  its  object  and  design  in 
reference  to  taxation  are  interrupted  and  defeated  by  such  an 
interpretation  of  the  Constitution.  It  would  at  one  stroke  de- 
prive the  Legislature  of  all  possible  power  of  securing  effect- 
ually the  great  idea  that  the  Constitution  itself  inculcates — 
equality  and  uniformity — and  we  would  be  left  forever  to  the 
mercy  of  these  hundreds  of  Assessors  in  the  various  districts, 
each  at  liberty  to  value  property  as  his  own  caprice  or  interest 
might  dictate,  above  and  bej^ond  the  reach  of  legislative  action. 

The  counsel  appeals  to  the  debates  of  the  Convention  which 
framed  our  Constitution  in  order  to  maintain  this  idea.  I  did 
not  suppose  we  would  hear  those  debates  again  appealed  to  after 
the  opinion  delivered  by  his  Honor,  Justice  Ehodes,  in  the  case 
of  The  People  v.  McCreery  (34  Cal.,  p.  434);  I  thought  he  had 
put  the  ghost  of  that  Convention  to  rest.  If  he  did  not,  I  will 
refer  him  to  the  case  in  Third  Ohio  State  Eeports,  which  I 
have  already  cited  on  that  same  question.     It  is  the  case  of  The 


[     50     ] 

Exchange  Bank  of  Columbus  v.  Hines.    Judge  Thurman,  after- 
wards Chief  Justice,  says: 

"  The  debates  of  a  body  that  forms  a  Constitution  or  law,  are 
proverbially  unsafe  guides  for  its  interpretation.  Those  who 
speak  are  generally  few  compared  with  those  who  vote,  and 
among  the  debaters  themselves,  there  is  seldom  seen  a  uni- 
formity of  construction.  The  advocates  of  a  provision  are  often 
silent  as  to  some  of  its  necessary  results  in  order  to  avoid  oppo- 
sition, and  its  enemies  sometimes  misconstrue  its  meaning,  or 
exaggerate  its  consequences,  in  order  to  defeat  it.  Debates  are 
not  always  listened  to,  and  a  speaker  is  liable  to  be  misunder- 
stood or  misreported.  A  brief  speech  on  the  floor  sometimes 
acquires  a  wonderful  length  in  print;  and  reasons  that  the  body 
never  heard,  may  first  see  the  light  through  the  agency  of  the 
press.  In  the  meantime,  the  law  has  been  adojjted,  each  mem- 
ber voting  upon  it  according  to  the  light  of  his  own  judgment." 

It  is  the  first  time  I  have  heard  it  argued  that  this  Constitu- 
tion was  got  uj),  and  these  provisions  inserted,  for  the  benefit  of 
the  Mexican  poiDulation  who  owned  land  in  this  State.  I  had 
supposed  that  the  Constitutional  Convention,  assembled  for  the 
purpose  of  laying  broad  and  deep  the  foundations  of  Anglo- 
Saxon  Government  upon  this  coast — to  lay  the  foundations  of  a 
free  State  for  the  government  and  protection  of  all — a  complete 
chart  of  Eepublican  Government.  No  petty  interest  of  a  sup- 
posed Mexican  majority,  such  as  that  the  counsel  has  adverted 
to,  had  anything  to  do  with  restricting  the  great  taxing  power 
of  the  new  State  about  to  be  formed.  The  Constitution  must 
be  construed  by  its  own  language.  No  such  considerations  will 
lend  us  any  aid  in  ascertaining  the  meaning  of  the  constitu- 
tional provision  we  are  discussing.  The  language  of  the  instru- 
ment shows  that  the  great  object  in  view  was  to  secure  equality 
and  uniformity  in  taxation — to  protect  each  and  every  citizen 
from  bearing  more  than  his  just  proportion  of  the  burden  of 
taxation.  That  is  the  great  central  dominating  idea.  Valua- 
tion is  merel}''  one  of  the  means  of  obtaining  the  data  upon 
which  it  could  be  secured.  The  Legislature  was  to  have  un- 
limited power  to  tax,  provided  only  the  tax  should  be  equal 
and  uniform.     That  is  the  idea  of  the  Constitution — that  is  the 


[     51     ] 

only  liaiitation.  The  ease  of  The  People  v.  Salomon,  46  111.,  p. 
333,  is  directly  iu  point,  as  in  that  case  a  law  of  that  State,  sim- 
ilar to  ours  establishing  a  State  Board  of  Equalization,  was 
attacked  upon  the  same  grounds  that  are  urged  here. 

[Mr.  HoGE  here  read  the  opinion  in  the  case  cited  in  full.  It 
is  printed  for  the  most  part  in  Mr.  Haymond's  argument  in  this 
cause.] 

I  could  not  have  better  described  the  conditio^  of  things  in 
California  if  I  should  attempt  it.  The  same  gross  irregularities 
and  inequalities  in  assessments  were  found  to  exist  in  this  State 
as  they  are  said  by  the  Court  to  have  existed  in  Illinois.  And 
here,  as  there,  it  was  for  the  purpose  of  remedying  that  great 
evil  that  the  State  Board  of  Equalization  was  established.  I 
could  not  make  a  better  argument  in  this  cause  than  is  made  in 
the  opinion  I  have  read  if  I  should  talk  a  month,  and  I  rely 
with  great  confidence  upon  this  case. 

Mr.  Felton — I  do  not  dispute  the  right  of  the  Legislature  of 
Illinois,  under  the  Constitution  of  that  State,  to  create  a  State 
Board  of  Equalization — but  our  Constitution  is  not  the  same. 

Mr.  HoGE — The  Court  will  see  by  comparing  the  Constitu- 
tions and  the  laws  of  the  two  States,  and  by  examining  the  facts 
of  the  case  I  have  referred  to,  that  there  is  no  substantial  dif- 
ference so  far  as  the  principles  involved  are  concerned.  In 
Illinois  the  omnipotent  power  of  the  Legislature  is  limited  by 
the  same  requirements  as  to  uniformity  and  equality  in  taxation 
as  in  this  State.  It  must  be  remembered  that  a  State  Constitu- 
tion is  not  to  be  interpreted  like  the  Constitution  of  the  L'''nited 
States.  It  is  not  a  grant  of  power — it  is  a  limitation  of  power. 
A  State  Legislature  is  as  omnipotent  as  the  Parliament  of  Eng- 
land unless  you  can  put  your  finger  upon  the  restricting  clause. 
If  you  establish  the  doctrine  contended  for  upon  the  other  side — 
that  the  valuation  ^f  the  Assessor  must  be  accepted  as  final— you 
will  place  that  officer  beyond  the  control  of  any  power.  The 
Legislature  can  have  no  control  over  him,  and  the  Courts 
could  not  change  his  valuations.  As  I  understand  him,  Mr. 
Felton  contends  that  the  law  makes  the  State  Board  of  Equali- 
zation  omnipotent — gives  it  unlimited  power — that  they  have 


[     52     ] 

j)Ower  to  reduce  the  assessments — the  valuations — so  as,  in  the 
end,  to  throw  all  the  burden  of  taxation  upon  a  given  piece  of 
property. 

Mr.  Felton — My  point  Avas,  that  they  have  the  power  to  add 
to  or  subtract  from  the  different  species  in  each  county;  that 
in  San  Francisco,  for  instance,  they  could  limit  the  valuation  to 
one  dollar. 

Mr,  HoGE — 'That  could  not  bo.     Would  that  be  equalizing? 

Mr.  Felton — It  would  be  an  abuse  of  the  power,  of  course. 

Mr.  HoGE — The  Legislature  did  not  give  the  power  you  sjieak 
of  at  all.     They  did  not  attempt  to  do  it.     The  Board  simply 
have  the  j^ower  to  examine  the  valuations  of  property  from 
each  county  in  the  State  and  get  such  information  as  they  can, 
with  a  view  to  ascertaining  whether  the  valuations  are  too  high 
in  one  county  or  too  low  in  another.     They  cannot  do  anything 
else,  and  there  is  no  pretense  that  they  have  attempted  to  do 
anything  else.     It  is  complained  that  the  Board  have  increased 
the  valuations  in  some  counties  and  reduced  them  in  others, 
thereby  increasing  the  burden  of  these  parties.     It  is  true  that 
reductions  Avere  made  in  Marin,  Alameda,  and  Monterey  Coun- 
ties.   But  such  reductions  were  made  in  justice  to  those  counties, 
upon  evidence  showing  the  necessity  for  the  reduction  in  order 
to  carry  out  the  command  of  the  Constitution,  to  secure  equal- 
ity and  uniformity.     Besides,  for  the  same  purjjose,  the  valua- 
tions of  other  counties  were  increased.     The  evidence  shows 
the  necessity  for  these  changes — for  this  equalization — and  it  is 
a  strong  illustration  of  the  wisdom  of  the  Legislature,  by  which 
this  Board  was  established.     How  does  it  ajjpear  that  these 
parties  can   complain  of  an  increased  tax  upon  them?      The 
increase   which   the   Board   made    in    some   counties  balanced 
the  reductions   in   others,   thus   leaving   San    Francisco   unaf- 
fected by  the  changes.     But  if  there  had  been  an  increase  upon 
the  projDerty  valuations  in  San  Francisco,  based  upon  evidence 
showing  that  in  justice  to  all  the  counties  there  should  be  such 
increase,  how  can  a  taxpaj-er  of  San  Francisco  be  heard  to  com- 
plain in  a  Court  of  equity?     The  Constitution  contemplates  that 
very  thing,  for  without  increasing  the  burden  of  taxation  upon 


[    53     ] 

somebody  there  can  be  no  such  thing  as  an  equalization  of  tax- 
ation so  as  to  secure  equality  and  uniformity.  Mr.  Felton  has 
admitted  that  the  Legislature  might  establish  a  Board  of  As- 
sessors— call  them  a  Board  of  Assessors — and  give  them  the 
power  to  equalize  the  valuations  of  property. 

Mr.  Felton. — Provided  the  members  of  the  Board  are  elected 
by  the  people  of  the  district  where  the  property  to  be  equalized 
is  situated. 

Mr.  Hoge. — How  are  you  going  to  get  at  the  difficulty  in 
that  way?  Our  County  Boards  of  Equalization  have  not  been 
elected  by  all  the  electors  whose  property  they  have  acted 
upon;  they  are  the  Supervisors,  and  are  elected  in  Supervisor 
districts.  In  some  counties  there  are  several — four,  five,  and 
even  twelve  districts  (as  in  San  Francisco) — and  they  act  upon 
the  whole  property  of  the  countj^;  so  that  in  every  case  in  San 
Francisco'  there  are  eleven  men  acting  upon  property  which  is 
not  in  the  district  by  which  they  were  elected.  And  yet  the 
constitutionalit}^  of  the  County  Boards  is  unquestioned.  Where 
^is  the  distinction? 

It  is  objected  that  the  State  Board  of  Equalization  interferes 
with  the  county  taxes.  Now  that  is  not  the  case.  The  Board 
have  nothing  to  do  with  local  taxes;  they  are  confined  exclu- 
sively to  the  equalization  of  property  for  State  purposes  and  to 
computing  the  rate  of  tax  for  State  purposes.  This  is  evident 
from  the  language  of  the  statute  itself. 

delegation  op  legislative  power. 

It  Is  also  objected  that  this  law  is  unconstitutional,  because 
it  attempts  to  delegate  legislative  power  to  the  Board.  If  the 
Legislature  had  said  to  the  Board,  "  You  may  fix  a  rate,  after 
the  amount  of  property  is  reported  to  you  by  the  Assessors, 
sufficient  to  raise  a  certain  sum,  which  we  have  specified,"  that 
would  have  been  all  right,  the  counsel  say;  that  would  have 
been  perfectly  constitutional.  Now  I  contend  that  that  is  pre- 
cisely what  the  Legislature  has  done  and  nothing  more. 

Mr,  Beatty. — Has  the  Legislature  given  the  Board  no  dis- 
cretion as  to  the  amount  to  be  raised? 


[     54     ] 

Mr.  Hoge. — They  have  done  nothing  more  than  has  been 
done  by  every  Legishiture  since  the  foundation  of  the  State 
government.  It  has  been  the  uniform  practice  to  allow  subor- 
dinate bodies — Boards  of  Supervisors,  City  Trustees,  School 
Directors,  and  directors  of  road  districts — to  fix  such  rates  of 
taxation  as  they  might  deem  proper.  That  has  never  been 
held  to  be  an  unconstitutional  delegation  of  legislative  power. 
The  truth  of  the  matter  is,  that  taxation  must  originate  with 
the  Legislature,  because  the  power  of  taxation  is  a  sovereign 
power.  All  taxation  must  be  authorized  by  legislative  enact- 
ment. But  it  does  not  follow  that  the  Legislature  cannot 
authorize  a  subordinate  body  to  exercise  this  power  under 
proper  restrictions.  As  a  general  principle  of  government,  it 
is  true  that  the  Legislature,  being  the  agent  of  the  people,  can- 
not delegate  its  power;  but,  like  all  general  truths,  it  is  not 
without  excej)tions  and  qualifications.  It  has  never  been  abso- 
lutely true,  but  the  contrary  is  the  truth.  The  Legislature — 
not  only  the  Legislature  of  this  State,  but,  so  far  as  I  know, 
the  Legislatures  of  all  the  States — has  constantly  been  in  the 
habit  of  delegating  certain  of  its  powers  to  municipal  corpora- 
tions; to  County  Boards  of  Supervisors;  to  cit}'^  governments; 
to  the  authorities  of  school  and  road  districts,  and  even  to  pri- 
vate corjiorations.  Private  corporations,  organized  for  private 
purposes,  but  held  by  the  Legislatui-e  to  be  a  public  benefit, 
have  long  been  clothed  with  the  great  sovereign  power  of  emi- 
nent domain — rthe  only  other  power  besides  the  power  of  taxa- 
tion by  which  private  property  can  be  taken  without  the 
consent  of  the  owner.  Legislation  delegating  such  important 
legislative  functions,  has  uniformly  been  upheld  by  the  Courts. 
But,  in  this  case,  there  is  no  delegation  of  any  legislative 
power.  The  Board  is  not  authorized  to  make  any  law.  It 
has  not  the  right  of  eminent  domain.  It  does  not  levy  a  tax. 
That  was  done  by  the  Legislature,  when  it  said  how  much  must 
be  raised,  and  sj^ecified  the  purposes  for  which  it  was  to  be  raised. 
The  Board  simply  has  power  to  take  the  sum  total  of  the  valua- 
tion of  all  the  property  in  the  State  and  divide  that  sum  by  the 
amount  which  the  Legislature  demands  to  be  raised.  It  is  a 
mathematical  calculation  and  that  is  all.  It  is  a  calculation 
which  the  Legislature  could  not  make,  because,  when  the  Leg- 


[     55     ] 

islature  was  in  session,  the  assessments  had  not  been  made;  it 
was  not  known  how  much  property  there  would  be  to  be  taxed. 
It  would  not  do  to  take  the  old  assessment,  for  that  would  not 
be  just  to  the  taxpayers;  so  the  Legislature  said,  ''We  will 
leave  this  calculation  to  the  State  Board  of  Equalization." 

Mr.  Beatty. — But  the  law  authorizes  the  Board  to  allow  for 
delinquencies — to  guess  what  the  delinquencies  will  be,  and 
levy  a  tax  to  cover  that. 

Mr.  Hoge. — The  Legislature  estimated  the  exact  amount 
that  would  be  needed  for  the  State  Government,  and  directed 
the  Board  to  raise  that  amount.  It  was  known,  by  the  experi- 
ence of  all  previous  levies,  that  there  would  be  a  delinquency, 
and  they  authorized  the  Board  to  fix  the  tax  high  enough  to 
raise  the  amount  needed,  over  and  above  the  delinquencies. 

Mr.  Beatty. — How  was  the  amount  of  delinquencies  to  be 
ascertained — was  not  that  a  delegation  of  legislative  power? 

Mr.  Hoge. — If  you  will  let  me  alone  I  will  get  at  your  delin- 
quencies presently.  I  am  coming  to  them.  One  thing  at  a 
time,  gentlemen;  keep  cool!  The  Legislature  required  a  cer- 
tain net  sum  of  revenue,  and  they  ordered  the  Board  to  take 
the  valuation  of  the  property  of  the  State,  and  estimate  the 
rate  of  tax  necessary  to  raise  that  sum.  Now,  the  law  makes 
certain  allowances  for  mileage  of  County  Treasurers,  and  other 
expenses,  which  are  known  as  the  costs  of  collection.  These 
costs  can  be  easily  estimated.  The  amounts  of  delinquencies 
of  previous  years  form  a  basis  upon  which  it  is  easy  to  approx- 
imate the  probable  delinquency  for  the  current  year.  Of 
course,  in  order  to  put  a  certain  net  sum  into  the  State  Treas- 
ury, it  was  absolutely  necessary  to  consider  these  costs  of  col- 
lection, and  these  delinquencies,  and  this  the  Board  did.  It 
was  a  simple  matter  of  figuring — the  determination  of  a  ques- 
tion of  fact,  from  given  figures.  There  was  not  an  element  of 
legislative  or  law-making  power  in  such  action.  Can  this 
Court  see  in  it  any  such  power?  Is  it  anything  more  than  a 
calculation?  What  is  a  delegation  of  the  taxing  power?  Has 
not  the  Legislature  the  right  to  authorize  an  ofiicer,  acting 
under  oath,  to  perform  such  an  act — an  act  which  the  Legisla- 


[    56     ] 

ture  cannot  perform,  for  want  of  the  data,  so  well  as  the  officer 
can?  Here  we  have  a  hiw  authorizing  this  taxation.  Every- 
thing is  done  by  the  Legislature,  except  the  mere  fixing  of  the 
rate.  The  amount  required  is  designated  in  plain  language; 
the  Funds  are  named,  and  the  amount  for  each  Fund  specified. 
All  that  is  left  to  the  Board  is  to  say  how  many  cents  on  the 
one  hundred  dollars  will  be  necessary  to  put  the  required 
sum  into  the  treasury.  For  the  soul  of  me,  I  cannot  see 
where  there  is  any  delegation  of  legislative  power  about  it. 

[Me.  Hoge  proceeded  to  argue  that  the  Board  had  not 
attempted  to  raise  a  greater  amount  of  revenue  than  the  law 
allowed,  citing  the  provisions  of  law  which  authorize  the  rais- 
ing of  money  for  the  twenty-fourth  and  twenty-fifth  fiscal 
years.  He  then  took  up  the  question  of  double  taxation  and 
discussed  that  at  some  length,  relying  upon  the  former  decis- 
ions of  the  Court  that  solvent  debts  are  taxable.  His  argu- 
ments on  these  points  are  omitted,  for  the  reason  that  they 
are  amplified  in  his  second  argument,  and  in  the  argument  of 
Mr.  Haymond,  as  published.] 


22  8  8 


ONIVERSITY  OF  CALIFORNLi 

AT 
LOS  AK^.ELES 


:''■  '■''■■;' 


'^^''l.'".':rli'il'i'''i-'':  ;-,V;S-':'-'''i'l"^(' 


,ji-  i-,;.  /■,(  H'l   ' 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  562  373 


_1<   :'' 


fti>*^ 


y 


